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INVESTIGATING INJURIOUS SPECIES INTRODUCTIONS
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Jill Lynn Finster

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INVESTIGATING INJURIOUS SPECIES INTRODUCTIONS
AS ENVIRONMENTAL CRIMES

By

Jill Lynn Finster

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF SCIENCE

Department of Fisheries and Wildlife

2007

ABSTRACT

INVESTIGATING INJURIOUS SPECIES INTRODUCTIONS
AS ENVIRONMENTAL CRIMES

By

Jill Lynn Finster

Aquatic invasive species (AIS) threaten the sustainability of Great Lakes ecosystems by
degrading habitat, competing with native and naturalized species, and disrupting essential
food-web structures. The intentional and accidental release of AIS into the Great Lakes
constitute environmental crimes under state and federal statutes. An imprecise definition
of “invasive,” limited authority through non-comprehensive legislation, inconsistent
regulations, and insufficient staff and financial resources hinder the investigation of
environmental crimes. Therefore, current enforcement is less effective than it should be
to deter future releases. This thesis considers the release and potential invasion of three
species of non-native Asian carp into the Great Lakes basin as an environmental crime.
This example illustrates the legislative gaps and ineffective enforcement mechanisms that
collectively contribute to unlawful releases going unpunished. To promote successful
prosecution of accidental and intentional releases, investigative procedures must be

improved. To this end, the development of a standardized investigative is proposed.

ACKNOWLEDGEMENTS

I would like to thank the members of my research committee: Dr. Bill Taylor, Dr. Ed
McGarrell, Dr. Chris Goddard, and Dr. Robyn Mace for the invaluable guidance and
support they provided throughout this project. In particular, Dr. Goddard’s mentorship
and counsel provided me both the practical direction and vision that were essential to this
project. Dr. Taylor and Dr. McGarrell are committed to furthering the field of
environmental crime studies and, to this end, created a unique partnership with the
Federal Law Enforcement Training Center. I was the first MSU student to undertake and
graduate from the FLETC training program and I am grateful to Dr. Taylor and Dr.
McGarrell for facilitating my participation. The commissioners, staff, and extended
community of the Great Lakes Fishery Commission generously provided support, shared
their expertise, and continually challenged me to take my thinking to the next level. I
would like to extend my sincere appreciation to the members of the Great Lakes Law
Enforcement Committee for “showing me the ropes” and allowing me to learn about
conservation law enforcement from the very best. I would also like to thank the US. Fish
and Wildlife Service staff members at the Federal Law Enforcement Training Center. A
very special thank-you goes to CI. Ross and Rick Giovengo for giving me an incredible
opportunity and for helping me to achieve my goals. In addition, I am very grateful to my
classmates and instructors from the Land Management Police Training Program #604 for
being such an invaluable part of a very memorable experience. Finally, my deepest
thanks to my friends and colleagues for their editing, insight, and moral support: Gavin

Christie, John Dettmers, Marc Gaden, Ted Lawrence, and Eric Wingfield.

iii

TABLE OF CONTENTS

LIST OF FIGURES ............................................................................................................... vi

INTRODUCTION ................................................................................................................. 1

CHAPTER 1

AQUATIC INJURIOUS SPECIES IN THE GREAT LAKES BASIN ................................ 5
Defining Injurious Species ......................................................................................... 5
Injurious Species in the Great Lakes ......................................................................... 6
Vectors of Introduction .............................................................................................. 8
Economic and Environmental Impacts of Injurious Species ........... , .......................... 10
Expanding Range of Established Species .................................................................. 11

CHAPTER 2

THE IMPENDING INVASION OF ASIAN CARP INTO THE GREAT

LAKES BASIN ...................................................................................................................... 13
Asian Carp: Importation into the United States ......................................................... 13
Asian Carp: Release ................................................................................................... 14
Asian Carp: Northward Spread .................................................................................. 14
Asian Carp: Current Situation in the Great Lakes Basin ........................................... 18
Other Potential Invaders from Aquaculture Facilities ............................................... 22

CHAPTER 3

ENVIRONMENTAL CRIMES ............................................................................................. 23
Defining Environmental Crimes ................................................................................ 23
Beyond a Reasonable Doubt versus Preponderance of Evidence .............................. 25
Applying the Model of Standard Criminal Law to Environmental Crime ................ 27
The Introduction of Asian Carp as an Environmental Crime .................................... 30

CHAPTER 4 _

REGULATION OF INJURIOUS SPECIES IMPORTATIONS AND

INTRODUCTIONS .......... . ..................................................................................................... 3 2
Legislation Addressing Injurious Species: International Regulations ....................... 32
Legislation Addressing Injurious Species: Federal Regulations ............................... 33
Legislation Addressing Injurious Species: State Regulations ................................... 40
Regulation of Asian Carp Introductions .................................................................... 41
Future Legislative Needs to Address Injurious Species ............................................ 44

Screening Process .......................................................................................... 45
Rapid Response and Control Measures ......................................................... 47

iv

Research ......................................................................................................... 48

CHAPTER 5
ENVIRONMENTAL CRIME INVESTIGATIONS ............................................................. 50
Existing Framework for Environmental Crime Scene Investigations ....................... 51
Challenges of Environmental Crime Scene Processing ............................................. 53
Administrative Challenges ............................................................................. 54
Scientific Challenges ..................................................................................... 56
Allocation of Funding, Staff, and Equipment ................................................ 59
Investigating the Introduction of Asian Carp into the Great Lakes Basin ................. 61
Recommendations for Developing an Investigative Framework for Injurious
Species Introductions ................................................................................................. 67
CONCLUSION ...................................................................................................................... 71
LITERATURE CITED .......................................................................................................... 74

LIST OF FIGURES

VECTORS OF INTRODUCTION OF INJURIOUS SPECIES INTO THE GREAT

LAKES BASIN .................................................................................................... 9

NORTHWARD MIGRATION OF BIGHEAD CARP ......................................................... 15
NORTHWARD MIGRATION OF SILVER CARP ............................................................. l6
CHICAGO SANITARY AND SHIP CANAL ...................................................................... 19

REGULATION OF ACTIVITIES PERTAINING TO ASIAN CARP WITHIN THE

GREAT LAKES BASIN ...................................................................................................... 43
INVESTIGATION AND PROSECTUION OF ENVIRONMENTAL CRIME ................... 52
ENVIRONMENTAL CRIME CLASSIFICATIONS: A PROPOSED FRAMEWORK ...... 68
ENVIRONMENTAL CRIME: FUTURE RESEARCH NEEDS .......................................... 72

Note: Images in this thesis are presented in color.

vi

INTRODUCTION

The Great Lakes are an extremely valuable and unique resource for both the
United States and Canada. The Great Lakes commercial, recreational, and tribal fisheries
are collectively valued at more than $4 billion annually (Talhelm 1988). For more than
five decades, efforts have been underway to protect the fishery resource from the
introduction of, and extensive harm caused by, injurious species. Biological pollution -
the introduction and establishment of undesirable plant and animal species not native to a
system -— has been increasing steadily in the Great Lakes basin and presents one of the
biggest threats to the future of the Great Lakes. The establishment of injurious species
results in great economic losses, as well as extensive ecosystem damage.

To date, 182 non-native species have become established in the Great Lakes basin
(Ricciardi 2006). For a non-native species to become newly established in an ecosystem
(defined by the presence of reproducing populations) multiple introductions are ofien
required. For the purposes of this thesis, the term introduction refers to the intentional or
unintentional release of a non-native species into aquatic or terrestrial ecosystems.
Chapter 1 begins by defining injurious species and discussing their impacts on both the
environment and economy of the Great Lakes region. The impacts of unintentional and
intentional unauthorized introductions of aquatic injurious species have had devastating
effects on fisheries productivity and economic vitality of coastal communities.

The impending invasion of three species of Asian carp into the Great Lakes basin
is examined in Chapter 2. Asian carp were imported into the United States for uses in
aquaculture; since escaping from farm fish ponds in the early 19703, these fish have

steadily moved northward through the Mississippi and Illinois River basins. The negative

impacts of Asian carp on both the ecosystem and economy in the regions they have
invaded have been considerable. As these fish near the Great Lakes basin, multiple levels
of government have made significant efforts to prevent these fish from entering the Great
Lakes ecosystem.

The field of environmental crime, focusing primarily on chemical pollution and
physical damage, is limited in scope and the result is that a number of activities that are
environmentally degrading are characterized by inadequate legislation, investigative
complications, and insufficient penalties. Chapter 3 provides a definition of
environmental crime that broadens the current scope and facilitates the inclusion of all
chemical, physical, and biological activities that have the potential to cause
environmental harm. The challenges associated with applying the model of standard
criminal law to environmental crime are also discussed in chapter 3. The standard of
proof requirements vary dramatically between the fields of criminal justice and natural
resource management. Consequently, investigations of environmental crimes are often
not able to attain the level of proof needed to meet the requirements of criminal
provisions of environmental regulations. Lastly, chapter 3 argues that the omission of the
importation and introduction of injurious species in the current definition of
environmental crime is a prime example of the detrimental effect such a limited
definition can have on effective enforcement and ecosystem management. For example,
the response to the escape of Asian carp from aquaculture facilities and the impending
invasion into the Great Lakes basin illustrates the effects of inadequate legislation and

enforcement governing injurious species at all levels of government.

Despite the great risk to ecosystem function arising from the importation and
introduction of injurious species, United States law addressing accidental or unlawful
introductions is inadequate. The difficulty in ascribing value to the impact of injurious
species introductions on the economics and integrity of the fisheries ecosystem has
resulted in weak regulations and relatively low penalties associated with their release.
Chapter 4 outlines international, federal, and state regulations that govern the
importation and introduction of injurious species. The chapter primarily focuses on the
Lacey Act of 1900 (18 U.S.C. 42), which is implemented by the United States Fish and
Wildlife Service (USFWS), and serves as the strongest enforcement tool to regulate the
importation and introduction of injurious species. The Lacey Act is a strong regulatory
mechanism to address injurious species importations and introductions, although the
process to list species as injurious is slow, cumbersome, and reactionary when in fact, it
should be quick, streamlined, and precautionary. Further, penalty provisions for both civil
and criminal infractions under the Lacey Act are universally weak and address only
intentional importations and introductions. Chapter 4 argues that, as Asian carp approach
the Great Lakes basin, the unsuccessful efforts to list Asian carp as injurious under the
Lacey Act illustrate its ineffectiveness to facilitate a strong enforcement response to
injurious species introductions. A discussion of the future legislative needs to address
aquatic injurious species concludes chapter 4. A comprehensive approach to address
injurious species importations and introductions should clearly empower the federal
government to develop a coordinated approach among all levels of government to address

prevention, early detection, rapid response, control, and management.

Chapter 5 begins with a review of the National Institute of Justice’s framework
for investigating environmental crime scenes. Although this framework was developed to
address illegal waste dumping cases, it is used to provide a foundation for the
development of a more comprehensive framework to outline the investigation of all types
of environmental crimes. Environmental crime scene investigations are relatively new; as
a result, chapter 5 focuses on the administrative, scientific, and resource allocation
challenges that currently face the development of investigative techniques and protocols.
Lastly, chapter five proposes future research needs and recommendations for the

development of an investigative framework for the introduction of injurious species.

CHAPTER 1

AQUATIC INJURIOUS SPECIES IN THE GREAT LAKES BASIN

Injurious species threaten the long-term viability of many aquatic systems
nationwide by causing irreversible environmental damage. The establishment of many
injurious species has had devastating effects on entire aquatic ecosystems such as:
decreased fisheries productivity; destroyed and altered habitat; and reduced survival of
native species, many of which are listed as threatened or endangered (Ricciardi 2006).
Injurious species introductions constitute one of the greatest threats to the nation’s
aquatic ecosystems. A single species can cause significant, permanent damage to
ecological health and the establishment of injurious species contributes to significant
economic losses. For the most part, these introductions are largely unregulated in the
United States.

DEFINING INJURIOUS SPECIES. There are a number of terms, such as
nonindigenous, exotic, naturalized, and non-native, that refer to species that have become
established in an ecosystem outside of their native range. In many cases, such as Pacific
salmon in the Great Lakes, non-native species were introduced intentionally by fisheries
management agencies to provide a fishery (Tanner and Tody 2002; Goddard 2002).
These terms are simply a statement of fact; that is, they identify the species as not being a
native inhabitant. Other terms, such as injurious species, attach a value judgment to the
species by attributing negative economic, social, or environmental consequences to the
establishment of that species. The Lacey Act of 1900 (18 U.S.C. 42) defines injurious

species as those species that are “. . .injurious to the health and welfare of humans, to the

interests of forestry, agriculture, or horticulture and to the welfare and survival of
wildlife” (50 CPR. 16.3). Building upon this definition, an injurious fish is defined as:
“...any species that can significantly adversely affect the long-term survival of native
species, the integrity or sustainability and functioning of natural communities or genetic '
variation within indigenous species” (Chadderton 2003, p. 74).

Geography, politics, and culture affect the ways in which society places value on
a specific species or ecosystem. Consequently, the value judgments that contribute to the
classification of a species as “injurious” are constantly being redefined. Given the
changing values associated with particular non-native species, not all non-native species
are categorized as injurious; often these species provide a benefit to the region in which
they have become established as a food or recreational fish or prey source. Therefore, in
some areas, the category of injurious species may include non-native species that threaten
the sustainability of populations of highly valued planned or unplanned introduced
species, in addition to native species (Chadderton 2003).

INJURIOUS SPECIES IN THE GREAT LAKES. The Great Lakes has the highest rate of
discovery of non-native species compared with any other freshwater ecosystem; a new
species is discovered every 28 weeks (Ricciardi 2006). While there are currently 182
non-native species known to be established in the Great Lakes basin, it is important to
again note that not all of these species are considered injurious, as many have been
intentionally introduced to support the intense commercial and recreational fisheries in
the region. Each year, federal, provincial, state, and tribal agencies stock more than 33
million fish; non-native coho (Oncorhynchus kisutch) and chinook salmon

(Oncorhynchus tshawytscha) comprise a significant portion of these programs (Ebener et

al. 2005). As native lake trout (Salvelinus namaycush) and deep-water cisco (Coregonus
johannae) populations declined in the 19503 due to a combination of over-fishing and sea
lamprey predation, populations of non-native alewife (A losa pseudoharengus), a small
pelagic planktivore, dominated the system. In response, Great Lakes fishery management
agencies began stocking non-native predators, including brown trout (Salmo trutta trutta),
coho and chinook salmon, and rainbow trout (Oncorhynchus mykiss) in an effort to
control the alewife population (Tanner and Tody 2002). Today, as these non-native
predator species flourish, management agencies are now struggling to maintain an
adequate prey source (i.e. alewife population) to support the ongoing demand by the
recreational fishery.

While only a small proportion (<10%) of non-native species that become
established result in negative impacts, the small fraction that do cause harm inflict
significant damage on both the environment and the economy (Ricciardi and Rasmussen
1998). It should be noted that the categorization of damage/harm to the environment
resulting from the establishment of non-native species will vary with individuals and over
time. Previous invasions have demonstrated that a single species can cause significant,
permanent damage to the economic and ecological health of a region. As the parasitic sea
lamprey (Petromyzon marinus) spread through the Great Lakes in the 1920s and 19303
afier the opening of the Welland Canal, the native lake trout population was decimated.
The sea lamprey is the only injurious species for which a control program has proven
effective; even with control, they remain a permanent, destructive element of the Great

Lakes fishery (Christie and Goddard 2003). Most—if not all—fishery management

decisions made by federal, provincial, state, and tribal agencies in the Great Lakes must
take sea lamprey control into account.

VECTORS OF INTRODUCTION. Injurious species enter aquatic ecosystems through
five primary vectors, or pathways: maritime commerce, recreational activities, organisms
in trade, aquaculture, and canals and waterways (GLRC 2005). Each of these vectors has
a number of sub-pathways (figure 1). The first vector, maritime commerce, includes
ballast water discharge and hull fouling as sub-pathways. The second and third vectors,
recreational activities and organisms in trade, each share many of the same sub-pathways,
including: cultural releases, introductions through the aquarium and water garden
industries, and boater and angler mediated releases. The organisms in trade vector also
shares sub«pathways with the fourth vector, aquaculture; they are: live markets, the
baitfish industry dealing with both cultured and wild-caught organisms; and commercial
and private fish farms. The fifth pathway through which injurious species enter aquatic
ecosystems is canals and waterways, which facilitate the expansion of aquatic species.

In the previous forty years, with the impacts of globalization, the introduction and
spread of non-native species have increased greatly (Stanley 1991; Taylor et al. in press).
The unintentional import through international trade has been identified as the primary
pathway through which aquatic injurious species currently enter the United States
(Jenkins 1996). Human population growth, the increased demand for efficient movement
of goods and people, and the continual modification of the environment have led to a lax
regulatory regime with regard to intentional and unintentional importations of injurious
species (Stanley 1991). Further, while the rate of international exchange continues to

increase exponentially, inspectors tasked with ensuring shipments entering

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handling (Pimentel 2005).

ECONOMIC AND ENVIRONMENTAL IMPACTS OF INJURIOUS SPECIES. In the case of
most injurious species, precise estimates of the economic impacts are not available,
because a formula for translating environmental damage into economic costs has not been
developed. Certainly, the continued survival of an individual species or the preservation
of a particular ecosystem cannot be accurately measured in dollar amounts. Efforts to
quantify the economic impact of aquatic injurious species generally include only control
expenditures and conservative damage assessments (Pimentel et al. 2000). Damage
assessments generally include losses reported by commercial and sport fishery industries,
maintenance costs incurred by various industries that utilize aquatic resources for
operation, and federal appropriations allocated to state and federal agencies mandated to
implement control programs. In 2005, the negative economic impact of aquatic injurious
species was estimated at $14.2 billion annually in the United States (Pimentel, 2005). By
comparison, the Environmental Protection Agency (2006) spent approximately $1.5
billion on the clean-up of contaminated sites designated under the Superfund Program in
2006. At a regional level, economic losses due to the nearly 200 injurious species in the
Great Lakes basin were estimated at approximately $5.0 billion per year in 2005
(Pimentel 2005). The sea lamprey control program, facilitated by the Great Lakes Fishery
Commission, operates on an annual budget of approximately $17 million.

It is important to note that the figures presented above do not reflect the extensive
environmental and ecosystem losses caused by the introduction of these injurious species.

Injurious species pose a threat by direct predation, competing for food and space —

10

particularly spawning areas, degrading habitat, and altering native gene pools and food
webs (Ricciardi 2006). The degree to which native fish and their habitats are impacted
depends on the nature of the native biodiversity within the ecosystem and the life history
characteristics of the invading species (Ricciardi 2001). Injurious species are a form of
biological pollution, in which the effects are often permanent and irreversible. Small
releases of live organisms differ from chemical pollution in that there is not a half-life to
mitigate damage. Biological pollutants are extremely difficult or impossible to remove
from the system once introduced and the problem is further exacerbated by the fact that
the pollutants can potentially reproduce (Chapman 2003).

The establishment of injurious species in aquatic ecosystems throughout the
United States is credited with being a major catalyst in the endangerment and extinction
of many native species (Jenkins 1996). Current estimates indicate that forty-four fish
species native to the United States are threatened or endangered by nonindigenous
species and an additional twenty-seven native species have been greatly harmed due to
introductions of non-native fish. Furthermore, as more than half of the 750,000 species
present in the United States have not yet been described, damage assessments cannot
accurately define the extent of environmental loss due to injurious species (Pimentel et al.
2000). There is no question in the scientific community that injurious species are the
“most pervasive and insidious” threat to biodiversity (Jenkins 1996. p. 300).

EXPANDING RANGE OF ESTABLISHED SPECIES. Once injurious species enter a
system, a number of ecological and life history factors can promote their establishment
and dispersion. These include: lack of natural predators, the ability of the invader to

become an effective predator in the new system, the availability of essential habitats

11

(such as spawning and rearing habitats), and the degree of adaptability of the invaders
(Pimentel 2000). The history of invasion in the Great Lakes supports the Simberloff —
Von Holle “invasional meltdown” model, which posits that as more and more injurious
species enter a system, the system becomes more susceptible to future invaders due to the
disruption to native communities and altered habitat caused by previous introductions.
Furthermore, varying degrees of interaction between non-native species may facilitate the

dispersal and success of other non-native populations (Ricciardi 2001 ).

12

CHAPTER 2
THE IMPENDING INVASION OF ASIAN CARP INTO THE

GREAT LAKES BASIN

There are three species of Asian carp that have now been established in wild
populations in the United States — grass carp (Ctenopharyngodon idella), bighead carp
(Hypophthalmichthys nobilis) and silver carp (Hypophthalmichthys molitrix). Populations
of a fourth species of Asian carp, black carp (Mylopharyngodon piceus), have been
reported in the wild, yet it is not clear if black carp have yet established reproducing
populations (Chick et al. 2003). Grass carp are established in water systems throughout
the United States. Although the three other species of Asian carp have not yet invaded the
Great Lakes basin, silver and bighead carp have become established and abundant in the
Mississippi and Illinois River basins and are within close proximity of the Great Lakes.
While black carp primarily remain in captivity today, individual black carp have been
discovered in the wild (Chick et al. 2003). Given the history of Asian carp escapement
from aquaculture, it is likely only a matter of time before black carp become established.
In addition, the similarity of appearance between the grass and black carp makes escape
of black carp by contamination of grass carp stocks likely (Nico and Fuller 2007). Due to
their voracious appetites, high fecundity, and ability to adapt to most types of
environment, Asian carp species pose a significant threat to native species in the Great
Lakes.

ASIAN CARP: IMPORTATIGN INTO THE UNITED STATES. Asian carp were brought

into the United States for uses in aquaculture as food fish and for biological control of

13

plankton and vegetation in aquaculture and ornamental ponds (Rasmussen 2002). Grass
carp were imported into the United States in 1962 from Taiwan and Malaysia. Black carp,
native to China, contaminated these shipments and were later intentionally introduced in
the 19808 to control snails in fish culture ponds in the southern United States (Nico and
Fuller 2007). Bighead carp were imported from China in 1972. A year later, in 1973,
silver carp were brought into the United States from China and eastern Siberia (Freeze
and Henderson 1982).

ASIAN CARP: RELEASE. In the 1970s, bighead and silver carp became problematic
in the southern United States, primarily Arkansas. In the mid to late 19705, these fish
escaped or were released from farm fish ponds. In the early 19903, the presence of silver
and bighead carp in the Arkansas River was reported (Koel et al. 2000). In 1993, massive
flooding provided extensive spawning and rearing habitat for floodplain spawning fishes,
thereby allowing the Asian carp to complete multiple spawning events in 1993 and
permitting high survival rates for their offspring. Since their escape from aquaculture
facilities, the fish have dramatically altered the environments they invaded. A small
number of black carp reportedly escaped into the Osage River, in the Missouri River
drainage, from a fish culture pond in the Ozarks during a flood in 1994 (Nico and Fuller
2007)

ASIAN CARP: NORTHWARD SPREAD. Given their ability to travel long distances in
short periods of time, silver and bighead carp spread quickly throughout the Mississippi
and Illinois River basins (figures 2, 3). They have out-competed native fish, such as
bigrnouth buffalo (Ictiobus cyprinellus), gizzard shad (Dorosoma cepedianum) and

paddlefish (Polyodon spathula), to become the most abundant species in some areas of

14

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16

those systems. The Upper Mississippi River Long Term Resource Monitoring Project
first discovered a single bighead carp in Pool 26 of the Illinois River, which is
downstream of Peoria, IL, in 1991; in 2000, over 100 bighead carp were recorded in the
same area (Koel et al. 2000). Between 1994 and 1997, commercial harvest of bighead
carp increased from 5.5 tons to 55 tons in the Mississippi River basin (Chick and Pegg
2001)

In the fall of 1999, an investigation of a fish kill in the off—channel waters of the
Upper Mississippi River National Wildlife Refuge near St. Louis Missouri documented
that 97% of the fish recorded were Asian carp, while only four native species were
present, represented by only one individual each (Conover et al. in review). During this
time period, commercial fisherman began reporting they were abandoning fishing sites,
because they were unable to lift nets that were “loaded” with Asian carp (Rasmussen
2002). It is important to note that, currently, there is a small commercial harvest of these
fish for conversion into fish meal (Conover et al. in review). This market, however, was
generated primarily to replace the commercial fishery that was lost due to the Asian carp
invasion.

Between 1999 and 2000, the Upper Mississippi River Long Term Resource
Monitoring Project documented a 600—fold increase in Asian carp numbers — from less
than 3 fish per year through 1999 to over 600 in 2000 — in the LaGrange Reach of the
Illinois River (Koel et al. 2000). Sampling during the summer of 2000 in isolated off-
channel areas and backwaters of the Mississippi River, downstream from St. Louis,
documented the presence of bighead carp at a ratio of 5:1 to native paddlefish

(Rasmussen 2002).

17

In 2001, during the “great round goby round up” in the Mississippi River basin,
several dead Asian carp were observed floating in the Starved Rock Pool of the Illinois
River, which is within 70 miles of Lake Michigan. The state of decay of these fish
indicated they had likely floated some distance downstream (Rasmussen 2002).

ASIAN CARP: CURRENT SITUATION IN THE GREAT LAKES BASIN. Bighead and silver
carp have steadily made their way northward toward the Great Lakes through the
Chicago Sanitary and Ship Canal (figures 4A, 48). Fish sampling surveys on the
Mississippi River and the Chicago Sanitary and Ship Canal have been used to track the
migration of Asian carp. Agencies report that silver and bighead carp are currently within
50 miles of Lake Michigan (Conover et al. in press). In the Mississippi River, self-
sustaining populations of bighead carp have been observed near Clinton, Iowa and self-
sustaining populations of silver carp have been observed near New Boston, Illinois (both
locations are south of the Wisconsin border). Nevertheless, sightings of the species have
been seen as far north as Alma, Wisconsin, which is south of Minneapolis (Conover et al.
in press). While it is unknown whether black carp are reproducing in the wild. live black
carp have been observed at the mouth of the Illinois River, near St. Louis, and in the Red
River, in Louisiana (Nico and Fuller 2007).

Research indicates that Asian carp are well-suited to the climate of the Great
Lakes region, which is similar to their native eastern hemisphere habitats (black: 22°N to
51°N; bighead: 21°N to 47°N; silver: 21°N to 54°N) (Nico et al. 2005; Kolar et al. 2005).
In addition, Asian carp prefer temperature ranges similar to those preferred by valuable
recreational and commercial species in the Great Lakes such as yellow perch (Perca

flavescents), salmon, and lake trout (Ferber 2001). All species of Asian carp are very

18

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prolific and spawn in moving waters. Bighead and silver carp are filter feeders and
consume a variety of planktonic organisms, which comprise an important element of all
fishes diets during their early life history stages (Chick et al. 2001) These life
historycharacteristics indicate that portions of the Great Lakes are perfectly suited for
Asian carp (Kolar et al. 2005). Fishery biologists are concerned that if allowed into the
basin, they will make the lakes home, spread, and deprive native and highly valued
introduced fish of food (Rasmussen 2002). Asian carp have the ability to become
established rapidly, reproduce in large numbers, and become the dominant species in an
ecosystem (Kolar et al. 2005). Once established, there is very little chance fishery
managers will be able to control Asian carp populations. Like sea lampreys, Asian carp
will become a permanent element of the Great Lakes (Ferber 2001; Chick and Pegg,
2001)

Based on the adverse environmental and economic effects they have had in the
Mississippi and Illinois River basins, there is little doubt that an Asian carp colonization
of the Great Lakes would seriously disrupt the ecosystem by drastically altering the food
web. The Great Lakes commercial, sport, and tribal fisheries will be greatly threatened if
bighead and silver carp enter the basin (Conover et al. in press). If Asian carp enter the
system, these fish will likely become a permanent, noxious feature of the Great Lakes
environment as they decimate food sources native and highly valued introduced fish rely
on.

Efforts to block the transmigration of Asian carp between the Mississippi River
system and the Great Lakes basin have been extensive. Many local, state, and federal

agencies have collaborated to design, build, fund, and operate two electrical dispersal

20

barriers in the Chicago Sanitary and Ship Canal. The first dispersal barrier (barrier I) was
activated in 2002 and was designed to prevent movement of injurious fishes across the
artificial connection between the Great Lakes and Mississippi River system (Conover et
al. in press). Given this was an experimental barrier, it was designed to have a relatively
short life span and is currently failing (GLRC 2005). The second barrier (barrier 11) is
under construction and was designed to be a permanent structure. It will be necessary to
retrofit barrier I to create a lengthy barrier system (over 1,000 feet) on the canal and
provide some redundancy (Conover et al. in press). Both barriers are operated by the
United States Army Corps of Engineers (U SACOE). Federal and state appropriations
totaling more than $15 million have been directed towards the construction these barriers,
which will cost approximately $500,000 each year to operate (Conover et al. in press).
Agencies report that both bighead and silver carp are within 20 miles of Barrier I (GLRC
2005). i

In addition, the state of Illinois and stakeholders have developed a rapid response
plan that will be implemented should Asian carp approach the barriers. The development
of this plan was funded by the Great Lakes Fishery Commission. This plan calls for the
application of the piscicide rotenone, which will eradicate the population of Asian carp
within the lower 5 miles of Lockport Pool, thereby preventing their northward migration
into Lake Michigan. The plan has outlined a procedure for the delivery of an adequate
supply of rotenone within 24 hours of the discovery of Asian carp past a specific location
(the Lockport Pool) in the Chicago Sanitary and Ship Canal. Rotenone is not an Asian
carp specific piscicide, therefore, all fish species in the treated portion of the canal will be

killed (Chapman et al. 2003). The primary species that occupy this stretch of water are:

21

common carp (Cyprinus carpio carpio), goldfish (Carassius auratus auralus), and
gizzard shad. A single application will cost an estimated $500,000.

OTHER POTENTIAL INVADERS FROM AQUACULTURE FACILITIES. There are a
number of species currently reared in aquaculture facilities throughout the United States,
that if released or allowed to escape, pose a similar threat to the Great Lakes basin. For
example, tilapia (Oreochromis sp.), one of the leading species being farm-raised in the
United States, requires environmental conditions that are present within the Great Lakes
basin (Fitzsimmons 2006). Furthermore, tilapia are considered an injurious species in
many areas of the world, including areas within the Mississippi River system. Other
species currently being raised in the United States that may find the Great Lakes a
suitable environment include: striped bass (Morone saxatilis) and zander (Sander
lucioperca).

A number of agencies, including the Environmental Protection Agency (EPA), the
Food and Drug Administration (FDA), the National Marine Fisheries Service (NMF S),
the United States Department of Agriculture (USDA), the United States Fish and Wildlife
Service (U SF WS), and numerous state environmental agencies have regulatory authority
over aquaculture facilities (National Aquaculture Association 2004). These agencies are
tasked with ensuring that the aquaculture industry undertakes practices that are in line
with state and federal ecosystem and watershed management objectives. One of the
responsibilities of these regulatory agencies is to ensure measures are taken to prevent
cultured species from reaching the wild; however, current aquaculture practices, such as
the use of net pens, increase the risk of escapement by allowing facilities to “rope off” an

area within a watershed in which cultured fish are raised.

22

CHAPTER3

ENVIRONMENTAL CRIMES

The study of environmental crime is relatively new; statutes and regulations that
define modern environmental law were enacted afier the first Earth Day in 1970
(McGregor 1994). Non-comprehensive legislation, an imprecise defmition, and
insufficient resources all contribute to the omission of numerous environmentally harmful
acts from the current field of environmental crime. As a result, environmental crime
scenes are not able to be processed with the same rigor as more traditional crime scenes.
The imminent invasion of Asian carp into the Great Lakes basin illustrates the limited
scope of the current approach to environmental crime.

For the purposes of this thesis, environmental crimes include all biological,
chemical, and physical alterations to the environment that cause, or have the potential to
cause, significant damage to the ecosystem. Within this context, and for the purposes of
this thesis, environmental crime does not include natural resource violations such as the
illegal take of fish and wildlife. Ideally, all environmental violations should be responded
to in the same scrupulous manner as more traditional crimes. The unlawful introduction
of injurious species is an environmental crime that has caused immeasurable harm to date
and continues to pose significant risk to the Great Lakes region. By drawing comparisons
between traditional and environmental criminal legal definitions and processes, the
foundation for investigating the introduction of injurious species will be developed.

DEFINING ENVIRONMENTAL CRIMES. The term “environmental crime” is one that

is commonly used, but the term lacks a consistent, and, therefore, a precise definition

23

(Clifford 1998). Environmental law, and by extension environmental crime, is a study
characterized by regulatory complexity, interdisciplinary structures, and scientific
uncertainty. Found in various statutes, bylaws, ordinances, regulations, and common law,
this body of governing principles is rooted in international, federal, state, and local
legislation (McGregor 1994). A review of the literature concerning environmental law
and policy exemplifies the limiting manner by which environmental crimes are currently
viewed. Chemical pollution, as defined by federal statutes such as the Clean Air Act, the
Clean Water Act, and the Resource Conservation and Recovery Act is the dominate focus
of current literature on environmental law and investigation.

Existing research tends to identify environmental crime as a category of other,
well-established criminological theories, namely white-collar crime (Clifford 1998). This
is primarily a result of the fact that most of the research in the field of environmental
crime is focused on violations, particularly illegal dumping, committed by corporations
and businesses. Despite the narrow focus of current literature, it is imperative to
understand that the definition of an environmental crime is not limited to chemical
pollution; rather, habitat destruction and the importation and introduction of injurious
species are designated as environmental crimes by various regulations. As criminal
justice theorist E.H. Sutherland argues, strictly using the legal standard when considering
potentially criminal actions is limiting, particularly given the infancy of environmental
legislation (Clifford 1998).

In an effort to broaden the scope of environmental crime studies, but to also set

some guiding parameters, the following definition is used:

24

“An environmental crime is an act committed with the intent to harm or

with a potential to cause harm to ecological and/or biological systems and

for the purpose of securing business or personal advantage” (Clifford 1998,

p. 26).

When translated into legislation, this definition will provide for a distinction between
strict liability (liability without fault) and culpable knowledge (some degree of knowing)
(Clifford 1998). Further, it is not limited by the requirement that a specific act be defined
in existing regulations. Rather, it provides the general criteria of “harmful” to qualify an
act as a crime. The importation and introduction of an injurious species would, using this
definition, qualify as an environmental crime.

The term environmental crime implies that some sort of crime has been
committed. Nevertheless, given the limited scope of environmental law, there are no
criminal charges for many offenses against the environment (Clifford 1998). Many acts
that would be designated as an environmental crime under the above definition, such as
the introduction of Asian carp into the Mississippi River basin from aquaculture facilities,
are not considered a violation under existing statutes. As a result, in most cases, there is
insufficient data on the frequency, extent, and exact nature of the crimes being committed
against the environment and society. Increased efforts to expand existing research on
environmental crimes must be made to include all violations against the environment.

BEYOND A REASONABLE DOUBT vs. PREPONDERANCE OF EVIDENCE. The study of
environmental crime is interdisciplinary, requiring input from both the disciplines of
natural resource management and criminal justice. Each discipline operates under

different frameworks. AS discussed above, the requirement for certainty is the foundation

25

of the criminal justice system. This system operates under the highest standard of proof
defined by the legal system: beyond a reasonable doubt. The concept of certainty in the
field of natural resource management, however, is impossible to achieve in most cases.
The innumerable ecosystems and environments that comprise the planet earth are living
systems that are constantly changing. As a result, natural resource management agencies
operate under the lowest standard of proof within the legal system: preponderance of
evidence, which can be defined as “more likely than not.” Clearly, the great disparity
between the proof standards further lends to the challenges associated with environmental
law.

Natural resource management agencies have been forced to move towards the
stricter standard to define environmental crimes, develop adequate laws and penalties,
and provide proof of such activities in a court of law. The limited scope of the current
definition of environmental crime requires natural resource management agencies to first
prove that a specific act is harmful to the ecosystem. Subsequent to this determination,
enforcement personnel must then provide proof of the responsible party.

To further facilitate the field of natural resource management operating under the
stricter standard of proof, efforts must focus on developing a comprehensive
understanding of what constitutes environmental harm. This, in turn, will support the
development of a more comprehensive definition of environmental crime. As a result,
natural resource management agencies will be in a better position to demonstrate that a
specific act resulted in environmental harm, thereby promoting the ability of natural
resource management agencies to meet the standard of proof requirements within the

criminal justice system.

26

APPLYING THE MODEL OF STANDARD CRIMINAL LAW TO ENVIRONMENTAL CRIME.

The development of laws and policies regulating actions that directly or indirectly harm
the environment is in its initial stages. Fortunately, legislation about actions that degrade
the environment is being developed at a rapid pace; yet, requisite regulations are complex,
have broad applicability, and must be rational, despite changing values (Burns and Lynch
2004). Originating with the Code of Hammurabi and the Ten Commandments, definitions
of traditional crimes are based upon thousands of years of common practice and
acceptance, establishing what is morally and civilly proper. Environmental law is an
emerging legal discipline and unlike the traditional legal code, prohibited activities have
neither been specified nor listed. As a result, society often lacks the wherewithal or moral
knowledge to specifically and generally determine what constitutes environmentally
harmful practices. Primarily, each law has been promulgated to address a specific
environmental component, such as air or water, which, therefore, leads to a disconnected
approach to natural resources law enforcement.

Comparing environmental crimes to the model of traditional crimes reveals a
number of challenges that contribute to the limited scope of current environmental law.
Traditional law is rooted in the standard of "contemporary reasoned judgment" - that is,
what a reasonable person would do at the time the law was enacted. Applying this same
standard to environmental law is difficult given two factors: the scientitic uncertainty that
characterizes environmental function and management and the changing societal values
that dictate what behaviors are acceptable. Historically, elements of the earth were
considered a replenishable commodity; therefore, there were no regulations to guide the
way in which natural resources were used. Scientific understanding of the impacts of

human and ecosystem interactions has increased exponentially within the past few

27

decades; as a result, societal awareness about the implications of both chemical and
biological pollution is far greater than before. This awareness has been manifested in
campaigns that promote activities that are “environmentally friendly,” or “green.”
Whereas twenty years ago the practice of anglers dumping their bait buckets was not only
common, but condoned, today millions of dollars are poured into campaigns such as
Habitatitude that seek to make people aware that dumping bait is environmentally
destructive (Michigan Sea Grant 2007). The challenge that environmental law-makers
face is defining what is “reasonable” to determine a legal standard in an environment that
is characterized by such a state of change.

Further complicating the efforts to regulate activities that affect the environment
is the fact that the natural resources that comprise the public environment, such as air and
water, are a common property resource (Hardin 1968). That is, the “commons” are
resources that are publicly owned and available to everyone. Thus, the actions of one
person that negatively impact the environment have effects on not only those in the
surrounding areas but, to a certain extent, everyone. Further, the collective impact of
individual environmental crime results in significant ecological damage. By the same
token, the groups and individuals that have a social, economic, or legal interest in
eliminating and prosecuting environmentally destructive activities are innumerable
(Findlay et al. 2003). As environmental law has developed, it is clear that the concept of
the environment as a common property resource further separates environmental law
from private property laws and commensurate regulatory controls through the civil

process that have been developed under the traditional model.

28

Philosophies of environmental enforcement include administrative (regulatory),
civil, and criminal enforcement (Clifford 1998). As with traditional crimes, the standard
of proof varies depending on the applicable regulation and the degree of the offense.
Administrative enforcement, which is mainly focused on pollution regulation, is
primarily carried out in the United States by the Environmental Protection Agency (EPA).
As administrative regulatory strategies, which are focused on achieving voluntary
compliance, continue to fail to deter violations, enforcement approaches are increasingly
moving towards the criminalization of environmentally destructive practices (Situ and
Emmons 2000). Yet, stricter criminal sanctions are rarely used. Under the United States
Criminal Code, for a particular activity to constitute a crime, certain factors, or elements
must have occurred. Each element of a crime must be proven beyond a reasonable doubt
to secure a conviction. Except for strict liability crimes, there are varying degrees of
culpability (mens rea) contained within criminal statutes: intentionally, knowingly,
recklessly, and negligently (Clifford 1998). Stricter mens rea requirements are often
associated with crimes classified as being more severe in nature and have more stringent
proof requirements and harsher penalties (Situ and Emmons 2000).

Generally, environmental statutes contain both strict liability and “knowing”
provisions (Clifford 1998). In strict liability cases, the proving of intent at any level is not
required within the elements of the crime. That is, committing the act constitutes guilt,
even if the act was done in ignorance. Most environmental laws also contain civil and
criminal provisions depending on the nature and duration of the violations. For example,
if a corporation exceeds regulatory discharge levels for an extended period of time, the

company may be civilly liable under the Clean Water Act. If that same company,

29

however, alters an output device so that waste is disposed of in a nearby river, that
company can be held criminally liable.

For environmental crimes that are defined by the criminal code, a number of
criteria are considered when establishing the elements of the crime: the type of act, the
specific act (3), the actor(s), the status of the actor(s) (i.e. rank or position within a
company, if applicable), and the applicable sanction (Clifford 1998). For each act, it must
be determined if it is necessary to demonstrate direct harm to the environment to establish
guilt (i.e. reduced quality of the environment) or if the potential to harm is sufficient. In
addition, the application of most environmental laws today distinguish between
individual violators from corporations; often, stronger penalties are associated with
corporate violators. Given the complexity of environmental laws, the varying regulatory
structures, and the broad range of crimes the field encompasses, classifying
environmental violations has proven extremely difficult.

THE INTRODUCTION OF ASIAN CARP As AN ENVIRONMENTAL CRIME. Due to the
limited perspective of current environmental crime legislation, introductions of injurious
species have not been responded to as environmental crimes. Irreversible damage due to
these introductions, however, has occurred in most watersheds and the economic toll
these species generate is mounting. The current situation in the Mississippi River basin is
a direct result of multiple unintentional and, possible intentional, releases from
aquaculture facilities. Further, instances of bighead and silver carp being discovered in
watersheds far outside of their known range strongly indicate that these fish are being
unlawfully introduced. Yet, as entire ecosystems are being severely damaged and forever

altered, there has been Virtually no effort to determine who is responsible and, therefore,

30

liable. Rather, the onus is on the federal and state governments to mitigate damage and
prevent further spread. The impending invasion of Asian carp into the Great Lakes basin
clearly demonstrates the vulnerability of the ecosystem, the inadequacy of existing laws,

and the need for more comprehensive legislation.

31

CHAPTER 4
REGULATION OF INJURIOUS SPECIES IMPORTATIONS AND

INTRODUCTIONS

Despite the magnitude of devastation arising from the establishment of injurious
species in the United States, the existing legislation addressing unlawful importations and
introductions of non-native species is inadequate. Strong importation laws are needed as
a first line of defense against unlawful introductions. Stricter regulation of non-native
species importation is needed to reduce the risk of introduction and establishment of
injurious species (GLRC 2005). Without strong legislation and Specific regulations
governing both importation and introduction of non-native species, enforcement is nearly
impossible. Enforcement and penalty provisions provided in federal and state regulations
provide neither adequate nor sufficient protection or restitution. To increase detection and
prosecution of these illegal activities, as well as to serve as a deterrent to committing
them, stronger, enforceable regulations and associated penalties must be established.

INJURIOUS SPECIES LEGISLATION: INTERNATIONAL REGULATIONS. Internationally-
based regulations to govern the importation and introduction of non-native species are
nearly non-existent. There are two primary agreements that address exotics: the
International Plant Protection Convention and the Convention of Biological Diversity.
The International Plant Protection Convention only addresses pests on terrestrial crops
and does not apply to aquatic invaders. The Convention of Biological Diversity has the
potential to protect native biodiversity, but lacks strong implementation. Article 8h calls

5‘

for parties to ...as far as possible and as appropriate...prevent the introduction of,

32

control, or eradicate those alien species which threaten ecosystems, habitats, or species”
(Jenkins 1996). Yet, without specific enforcement provisions and a regulated evaluation
and listing process for potential importations, the convention does little in terms of the
actual management of intentional and unintentional introductions. In addition, according
to Chapman (2003), “None of the provisions or regulations in the [convention] mention
live seafood or contain provisions for live organisms that pass directly to consumers for
consumption.” The assumption, it seems, is that border inspections of shipments
importing live organisms is an adequate response to the threat posed by unlawfirl non-
native species introductions. The number of wildlife inspectors in the United States, the
resources allocated to training, and the degree of risk analysis, however, has failed to
keep pace with the volume of trade of live aquatic species and the increased risk of
unauthorized or unintentional introductions (Jenkins 1996).

Overall, bans or restrictions on imports would likely be considered unfair
restraints on trade by the World Trade Organization (WTO), the General Agreement on
Tariffs and Trade (GATT), the North American Free Trade Agreement (NAFTA) and
other international agreements. Further, any bans or restrictions on imports must be based
on science, and that is difficult given the uncertainty of quantifying or predicting the
ecological and economic impacts of the potential introduction of non-native species. It is
likely that only by eliminating the gaps in research and scientific understanding with
respect to quantifying the economic and environmental damage caused by the
introduction of injurious species that trade restrictions will be supported.

INJURIOUS SPECIES LEGISLATION: FEDERAL REGULATIONS. Within the United

States, the state and federal regulations regarding the importation and legal and illegal

33

introduction of non-native species developed haphazardly. Opposition fiom the
aquaculture and pet-trade industries to increased regulation of importation fueled the
development of lenient regulations, as many state and federal legislators agreed with the
arguments that stringent regulations would have adverse effects on businesses. As a result,
importation of non-native species into the United States, historically, has not been
recognized as a problem and is, therefore, characterized by light regulation and minimal
enforcement. Regulation of non-native species introductions is more complicated in that
it occurs at various levels of government and varies dramatically between jurisdictions.
Once state and federal agencies acknowledged the potential for damage caused by non-
native introductions, and lacking centralized leadership and coordination, a
conglomeration of ineffective regulations were developed. Enforcement of these
regulations is difficult due to regulatory disparities between the states and other levels of
government and social misconceptions about the degree of harm posed by, and the
perceived benefit of, non-native species (Stanley et al. 1991). Legal challenges to
regulating interstate commerce have further contributed to hesitation in both the legal and
law enforcement realms.

At the federal level, the Department of Interior, through Congress, delegates
authority to the USFWS to regulate importations and introductions of injurious species.
Statutory authority governing activities dealing with the release of injurious species has
been delegated to the USFWS through the interpretation of a number of acts — that is, the
authority has not been specifically granted. The 1871 Act (16 Stat. 593) established the
first conservation agency within the United States, the United States Commission of Fish

and Fisheries (COF). In 1903, the COP was transferred to the Bureau of Fisheries

34

(USBF) under the Department of Commerce until the Department of Interior took over in
1939 (NOAA 2006). The 1871 act provided the foundation upon which the USFWS was
established in 1940 (Madison 2006). In 1956, the Fish and Wildlife Act (16 U.S.C. 742a
— 742j) was enacted, authorizing the Secretary of Interior to “take steps required for
the...conservation, and protection of fisheries resources.” This general provision,
however, has not yet been used to develop a policy on injurious species. The Endangered
Species Act (ESA —— 16 U.S.C. 1531—1543), passed in 1973, prohibits the introduction of
any non-native species if that proposed introduction threatens a species listed as
endangered in the United States. Cases involving an ESA claim must prove that the
welfare of an endangered species was further threatened due to the introduction in
question (Stanley et al. 1991).

In addition to interpreted statutory authority, the USFWS was delegated oversight
of importations and introductions of non-native fish by Executive Order 11987, signed in
1977. This order prohibited federal agencies and other agencies receiving federal funding
from importing and introducing non-native species and exporting native species for
introduction outside the United States. As a result, intentional introductions of non-native
species by federal agencies (i.e. stocking) has ceased. Nevertheless, this executive order
does not regulate the states. Although the USFWS has requested the states to get formal
opinions from the USFWS about projects that involve non-native species importations
and introductions, there is no mandate to require such.

While the statutes discussed above provide some authority to the USFWS to
regulate injurious species, the strongest, most comprehensive authority comes from the

Lacey Act of 1900. This statute makes it unlawful to “import, export, transport, sell,

35

receive, acquire, or purchase any fish or wildlife already taken, possessed, transported, or
sold in violation of state, federal, Indian tribal, or foreign wildlife laws or regulations”
(18 U.S.C. 42; 50 CFR 16.3). In addition, it authorizes the Secretary of Interior to
establish regulations regarding the importation and introduction of injurious species and
allows the USFWS to prohibit the introduction of any species that are potentially
injurious to native fish and wildlife. Specifically, the act contains an injurious wildlife
provision (50 CFR 16.13 (2)) which lists particular species banned for interstate
commerce and possession (Stanley et al. 1991). It is important to note that the Lacey Act
does not explicitly define “injurious.” Rather, each species in question is subjectively
evaluated by the USFWS to determine if it is potentially injurious to human beings, to the
interests of agriculture, horticulture, and forestry, or to wildlife or wildlife resources of
the United States. While the Lacey Act is the strongest enforcement tool against the
introduction of species classified as injurious, it only addresses intentional importations
and introductions of a very limited number of species.

Under the Lacey Act, there are two avenues that can be used to regulate the
importation and introduction of injurious species. The first is that the species in question
is listed as injurious. As stated above, the injurious wildlife provisions of the Lacey Act,
under Title 18 of the United States Criminal Code, restricts the importation and interstate
transportation of wildlife deemed to be injurious or potentially injurious. The process for
adding a species to the list, however, is very cumbersome. Although the USFWS has the
authority to issue emergency regulations, it generally operates through the standard notice
and comment process. That is, the USFWS posts a notice in the Federal Register of its

intent to add a species to the list of injurious species and the notice generally provides for

36

a 60 to 90 day public-comment period. This has the duel drawback of allowing necessary
listings to be delayed considerably, as well as providing a cue to importers to increase the
quantity of imports before the importation is prohibited. As a result, only a very small
number of species are listed as injurious under the Lacey Act (three families of fishes,
one species of crustacean, one species of mollusk, and one reptile species) while
hundreds await review. To further complicate the matter, there is currently one person
nationwide tasked with reviewing the listing requests (GLRC 2005). Due to these
limitations, the Lacey Act list of injurious species does not include many species that
have been identified as injurious by individual states. As a result, this patchwork of
regulations precludes effective regulation and enforcement and provides a myriad of
pathways for intentional and unintentional introductions.

The second avenue for regulating the importation and introduction of injurious
species under the Lacey Act is if the species is imported or possessed in violation of state
or foreign law. That is, for the USFWS to have jurisdiction, the species in question must
have been transported across state lines. According the Environmental Crimes Section of
the United States Department of Justice, once the USFWS has established authority over
the case, several factors are evaluated to determine whether to prosecute under the Lacey
Act. The first factor assessed is the strength of the underlying state law; this
determination, made on a case-by-case basis, evaluates the strength of the case against
the accused. The second factor used to determine if the case will be prosecuted under the
Lacey Act is the adequacy of penalties provided for by state law. In most cases, it is the
discretion of the federal/state prosecutor that determines if a case will be pursued under

the Lacey Act or prosecuted by the state in which the violation occurred (Webb 2006).

37

If a case is successfully prosecuted under the Lacey Act, the penalty provisions
are the most severe available for violations concerning live fish commerce. Civil
infractions, which entail the transportation, acquisition, or receipt of injurious wildlife in
violation of United States, Indian tribal, foreign, or state law, with a market value less
than $350, can result in penalties not to exceed the maximum provided for in the
underlying law or $10,000, whichever is less. Criminal violations, which involve the sale
or purchase of injurious wildlife taken in violation of United States, Indian tribal, foreign,
or state law with a market value more than $350, are punishable by fines not to exceed
$20,000 or imprisonment for not more than five years, or both. In addition, there is a
clause within the Lacey Act that states if any other violation occurs, a misdemeanor
charge can be laid with an associated penalty of $10,000 or one year imprisonment
(Lacey Act, 18 USC 42).

Despite the relatively strong penalty provisions provided for under the Lacey Act,
a number of factors limit their effectiveness. First, as Special Agent Dan Sheill stated, the
criminal provisions of the Lacey Act are rarely applied to the unlawful importation and
introduction of injurious species (pers. com. 2005). Secondly, even the harshest
monetary sanctions are often perceived by the violators as “the cost of doing business”
(Clifford 1998). Given the increased difficulties with investigating and successfully
prosecuting biological pollution cases, monetary violations are likely even less of a
deterrent. When the expected fine from Violating an environmental statute is considerably
less than taking the measures necessary to remain compliant, the choice is often to act

outside of the law.

38

While the penalty provisions for civil and criminal Violations of the Lacey Act are
significant, the listing process for injurious species remains a major weak point in the
legislation. The hurdles associated with listing species have not gone unnoticed.
Throughout the years, several amendments have been proposed to improve the
administration of the injurious wildlife provision. In 1973, the USFWS proposed
implementing a “clean list” approach, whereby all non-native species were deemed
injurious and only species on the “clean” list would be permitted. An overwhelming
number of comments were received, however, that criticized this approach arguing that it
was too limiting to pet and aquaculture industries. The list of permitted species was
expanded and the amendment was again unsuccessfully proposed in 1975. In 1977, the
USFWS tried a different tactic by proposing a more extensive list of prohibited species,
known as a “dirty list” approach. Yet, once again, proponents from the hobby fish and
aquaculture industries voiced great opposition and the proposal failed (Stanley et al.
1991)

In addition to the authority delegated to the USFWS, there are federal statutes that
address injurious species outside of the scope of the USFWS. For example, the National
Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA — 16 U.S.C. 4701)
gives authority to the Secretary of Transportation, in consultation with the USFWS
Director and Secretary of Commerce for Oceans and Atmosphere, to establish regulations
regarding ballast water discharge (Stanley et al. 1991). In 1990, in an unprecedented
move, Congress used this act to bypass the listing process under the USFWS. After zebra
mussels (Dreissena polymorpha) were introduced into the Great Lakes, likely via ballast

water of ocean-going vessels, they spread rapidly and now result in significant economic

39

costs to power plants and water supply facilities as they rapidly colonize all types of
surfaces including water-intake pipes. Zebra mussels also negatively affect the
ecosystems they invade as they are extremely efficient filter feeders (USGS 2007). Due
to the extensive damage caused by zebra mussels, Section 1208 of NANPCA was
amended, through congressional directive (HR. 5390), to add zebra mussels to the list of
injurious species under the Lacey Act.

LEGISLATION ADDRESSING INJURIOUS SPECIES: STATE REGULATIONS. State
regulations vary dramatically depending on the type of Species proposed for importation
and the purpose of the importation. Nearly every state prohibits the introduction of non-
native fish without a permit; however, all state agencies do not need to seek federal
approval or undergo peer review by other states prior to introducing non-native fish
species (Courtenay and Fuller 2004). With regard to importation of species for
commercial use, such as baitfish and the aquarium trade, there is no model code or
overarching set of regulations between the states. As a result, each jurisdiction has a
different approach to regulating potentially injurious species, such as Asian carp.
Generally, these regulations have evolved over time in a reactive response to increasing
levels of risk posed by specific species (Alexander 2003). Further, commercial
aquaculture industries have sought exemption from state regulation by having the state
agriculture administration oversee aquaculture activities. In many states, this approach
has been taken. Yet, in most states, the Department of Agriculture does not have a legal
commitment to conserve the natural resources of that state. Therefore, there is little

incentive to ensure sound environmental practices are instituted in aquaculture facilities.

40

Non-federal penalty provisions are almost universally inadequate. Most states
impose some type of misdemeanor penalty on violators of their various live fish
commerce laws, but none of them are sizeable enough to be a meaningful deterrent —
particularly not to a large-scale aquaculture operation. The fines for non-aquacultural
offenses such as importing, unpermitted stocking, and release, average roughly $100. The
maximum fines associated with aquaculture law violations and other infractions
associated with large commercial operations, such as bait dealers, average about $5,000.
Certain states include short jail terms in the sentencing guidelines, but rarely are violators
sentenced to incarceration. (Alexander 2003).

In addition to inadequate legislation governing the introduction of injurious
species, there are many deterrents to effective enforcement of the existing regulations.
These include: limited resources to police, unsubstantial inspection and levy fines;
inadequate education and training for enforcement staff; limits in authority of state and
federal laws; fines that are too low to deter violations; and, a lack of or limited political
will to exercise authority under existing state and federal laws (Alexander 2003). Given
the myriad of responsibilities placed upon state and tribal conservation officers,
regulation of laws that lack clearly enforceable provisions and meaningful penalties ofien
falls short on a long list of priorities.

REGULATION OF ASIAN CARP INTRODUCTIONS. For nearly five years, there has
been an intense, on-going effort by all of the states, various governmental and non-
governmental agencies and concerned citizens in the Great Lakes basin to list the silver,
bighead, and black carp as injurious under the Lacey Act. In July of 2002, the USFWS

proposed an amendment to add the black carp to the list of injurious species; the

41

comment period was closed and then reopened in July 2003 and reopened again in
August 2005. In August 2004, the Office of Management and Budget designated the
proposed rule as “significant” meaning the USFWS was required to prepare and submit
assessments of the potential economic and environmental costs and benefits of the
regulatory action. According to Executive Order 12866 (section 3(f)(1)) (1993), a
proposed rule will be designated as significant if it has an annual economic effect of $100
million or more or adversely affects “any sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or state, local, or tribal
governments or communities.” In July 2003, a proposal to list the silver carp was
submitted and in October 2005 the proposed rule was designated as “significant.” Lastly,
in September 2003, the USFWS proposed adding the bighead carp to the injurious
species list. To date, none of these species have been listed as injurious under the Lacey
Act. This is curious as the USFWS has developed a management plan, Management and
Control Plan for Asian Carps in the United States in which strategies and
recommendations for reducing the risk of intentional and unintentional introductions are
presented (Conover et al. in press). Clearly, this is a case in which short-term economic
interests have outweighed long-term environmental and economic interests.

In addition to the failed federal efforts to list Asian carp as injurious, states within
the Great Lakes basin have acted out of necessity to prevent the introduction of these
species. Coordinated through the Great Lakes Law Enforcement Committee, the
individual states and the Province of Ontario have individually promulgated regulations
prohibiting the importation, exportation, transportation, sale, purchase, and acquisition of

live Asian carp (figure 5). The development of these regulations on an individual

42

 

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jurisdictional basis was not the most efficient or effective approach to what ideally should
have been a national effort. The use of the Lacey Act would stop immediately the
interstate transportation of these species and significantly lessen the risk of introductions
through the live fish trade. In recognition of the need for immediate action,
Congresswoman Judy Biggert from Illinois introduced Bill HR. 83, the Asian Carp
Prevention and Control Act, in January 2007. Through this Act, if passed, congress will
amend the Lacey Act by adding certain species of Asian carp to the list of injurious
species, thereby prohibiting their importation, interstate transportation, and introduction.

FUTURE LEGISLATIVE NEEDS To ADDRESS INJURIOUS SPECIES. Efforts to prevent
further injurious species introductions must occur more proactively (i.e. before a
potentially injurious species is imported into the United States), provide a comprehensive
approach, and receive a better financial commitment from all levels of government to
reduce the economic and environmental havoc these species create (Jenkins 1996).
International, federal, state, and local agencies involved in ecosystem management must
unite in a coordinated approach to establish a comprehensive program to address
injurious species introductions. It could be envisioned that the Association of Fish and
Wildlife Agencies (AFWA), which represents all of North America’s fish and wildlife
agencies, could initially provide direction on the nature and format of such a program,
which could then be further developed at federal, state, and local levels.

The Law Enforcement Committee of AF WA is in a prime position to facilitate the
development and implementation of a comprehensive injurious species program. This
committee serves as a conduit for the transfer of information between fisheries managers

66

and law enforcement agencies. AF WA specifically functions ...to investigate and

44

advisewith respect to the introduction of new species and varieties of fish and wildlife; to
assist in the enactment of laws for the adequate protection and management of natural
resources; and, to obtain as far as possible uniformity in same; and to correct
irregularities and inconsistencies in existing laws” (AF WA 2007). While the USFWS has
the primary authority to regulate the importation and introduction of injurious species in
the United States, AF WA provides a forum in which all levels of government in North
America can address the increasing threat of injurious species through inter-jurisdictional
cooperation and coordination.

A comprehensive program must implement a holistic approach to develop “. . .the
best management options and control tools to restrict, reduce, and maintain the target
species at levels of insignificant impact, while minimizing danger to the environment,
human health, and the economy” (Conover et al. in press). Elements of a comprehensive
program include: a screening process, rapid response plans, control measures, and
research, education and outreach components. Further, a comprehensive program should
be regularly evaluated to assess its effectiveness (GLRC 2005).

SCREENING PROCESS. The screening process component to prevent importations in
the first place is imperative. A comprehensive program should implement a screening
process to evaluate proposed importations whereupon the onus is placed on the importer
to prove the innocuousness of the species proposed for importation. Currently, through
the Lacey Act, the onus is on the government to prove the injuriousness of the species.
This approach has proven to be woefully inadequate and has contributed to species such
as snakehead (C hannidae) and Asian swamp eel (Monopterus albus) invading and

irreversibly altering entire ecosystems. Regardless of the reason for the proposed

45

importation, the responsibility should be on the importer to demonstrate that the species
proposed for importation does not pose a threat in any way to native species or
ecosystems. Further, consistent parameters guiding the evaluation of injuriousness should
be established to reduce subjectivity throughout the process. Ricciardi and Rasmussen
(1998) set forth three primary guidelines for a screening process: identify potential
geographic donor regions, such as: regions with similar climates, large-scale shipping
patterns, and growing economies; generate a general biological profile of the species to
include genetic variability, tolerance limits, and the current size of distribution; and,
utilize invasion history as predictive criterion. These guidelines, which provide a
comprehensive evaluation of the invasion and impact potential, were developed using
concepts from marine and terrestrial invasion biology (Riccardi and Rasmussen 1998).
Risk assessments, in which the probability of establishment and the consequences of
establishment are used to determine the overall organism risk potential in the United
States, should be conducted for each proposed non-native species import and funded by
the proponent. In addition, Jenkins (1996) argues that, at a minimum, screening programs
should include an evaluation of both the current and projected pathways of introductions,
as well as institutional and technological capabilities for preventing, controlling, and
eradicating non-native species. Further, for all proposed importations of non-native
species, the importer must specify the measures to prevent the escape of the non-native
species, and ideally post a bond or demonstrate insurance coverage sufficient to cover all
costs associated with the implementation of a rapid response plan or an ongoing control

program, should the species escape.

46

RAPID RESPONSE AND CONTROL MEASURES. Rapid response plans to address
unlawful introductions and control and management programs, should an injurious
species become established, are integral components of a comprehensive plan. Risk
assessments conducted during the screening phase, prior to importation, should include a
thorough assessment of available measures to contain the imported species if it escapes.
The control, containment, and eradication measures should be documented for each
proposed introduction. Rapid response plans should be developed and approved by the
management agencies for all species approved for importation and should be
implemented if an accidental or intentional introduction occurs.

In most cases of biological pollution, eradication efforts have proven futile. Once
a species has become established, it is essentially impossible to eradicate it without
destroying habitat. As a result, efforts to control (i.e. reduce the number of species in the
wild) and contain (i.e. minimize the further spread) the invader are, in most cases, the
only options. Even if a species is susceptible to control techniques, control measures are
often difficult and expensive. Further, success of a control program is further dictated by
criteria such as: species recruitment, probability of reinvasion, non-target mortality, target
population densities and the socio-political climate (Chadderton 2003). Systems that have
sustained significant damage from long-established invaders and systems that have
multiple populations of injurious species present further challenges to developing an
effective control program (Zavelta et al. 2001).

Both control and containment measures require “. . .indefinite investments of time,
tools and money to keep the invader at bay” (Zavaleta et al. 2001). The current level of

resources devoted to the problem of injurious species is far from being in proportion to

47

 

the environmental and economic damage they inflict; this must be rectified in the future
(Pimentel 2000). Heretofore, the responsibility and the costs of control of injurious
species have fallen on the state and federal governments. In the future, proponents of
importation of non-native species should be required to “post a bond” or have insurance
to pay for any required control measures.

RESEARCH. Research is another critical component of a comprehensive injurious
species management program. Agencies tasked with regulating injurious species
importations should be obligated to conduct research to identify additional species of
concern and possible routes of entry (Stanley et al. 1991). In addition, research is needed
to assess problem areas of importation, evaluate the effectiveness of the screening
process, and to develop and review rapid response, control, containment, and eradication
programs. From an enforcement perspective, research needs include determining the
extent of accidental and intentional introductions and developing mechanisms to
effectively deter future introductions (Chadderton 2003).

Currently, there is proposed legislation that would address many of the
recommendations presented above. The National Aquatic Invasive Species Act (N AISA —
S. 725) includes provisions that address prevention, early detection, rapid response,
control, management, and coordination among various levels of government. Further,
elements such as research, outreach and education are included in the Act (GLRC 2005).
While NAISA is the most promising response to the threat posed by injurious species, to
be truly effective it must be amended to include delegation of authority to enforce the
proposed provisions. In addition, other revisions, such as placing the burden of proof of

noninjuriousness on the importer, would strengthen this proposed legislation. If passed,

48

this Act would be a major step towards closing many of the regulatory gaps that presently
exist.

The penalty provisions provided under the Lacey Act are the best starting point
for developing deterrence strategies. According to Ricciardi (1998), “The most consistent
attribute of an injurious species is human commensalisms. Most successfirl invaders,
particularly major pest species, use dispersal mechanisms that involve human activity.”
Additional research must be dedicated to developing recommendations for methods to
control human vectors of dispersal (Ricciardi 2006). Clearly, enforcement with the
purpose of educating unknowing violators and deterring those who intentionally
introduce injurious species is essential. Further, implementation of disincentive rules and
regulations are essential to prevent the release of live organisms (Chadderton 2003). In
addition to implementing higher enforcement standards, more stringent penalties would
serve to deter violations, while also mitigating the costs of control programs for existing
injurious species. Through implementation of such measures by all management agencies,
the unauthorized introduction of injurious species will be branded as “socially

unacceptable,” thereby creating yet another layer of deterrence.

49

 

CHAPTER 5

ENVIRONMENTAL CRIME INVESTIGATIONS

Given that environmental regulation is still relatively new, the development of
environmental crime investigative techniques is really just emerging. Until the previous
decade, environmental crime scene investigation was essentially overlooked within the

‘6

field of criminal justice. The study of environmental crime ...lacks a theoretical
framework [which] slows efforts to develop a comprehensive understanding of the
phenomenon, and this in turn delays enactment of preventive measures and enforcement
provisions” (Clifford 1998). Unlike traditional crime scene investigations, a
comprehensive strategy does not exist for processing environmental crime scenes. While
an investigative framework exists for physical and chemical environmental crimes, such
as illegal waste dumping, there is no protocol in place for investigating the introduction
of injurious species. Yet, investigations are often an imperative element needed to meet
the standard of proof for criminal prosecution of unlawful importation and introduction
Violations under the Lacey Act.

Further, a number of challenges, including administrative, scientific, and resource
allocation issues, currently dilute environmental legal and enforcement authority.
Ecosystem variability and the lack of regular assessment complicate the process in that it
is harder to prove the negative impact of the crime (Walker 1998). Moreover, the
scientific uncertainty, costs, and changing societal values surrounding environmental

violations have stalled the development and application of environmental crime

investigation techniques. These issues must be addressed and appropriately managed to

50

 

advance the field of environmental crime investigation and create a more comprehensive
approach to addressing environmental Violations of all types.

To promote successful prosecution of accidental and intentional releases of
injurious species, investigative procedures must be developed. Crime scenes must be
thoroughly processed and investigated to meet the burden of proof set forth in each
statute. To this end, a standardized investigative framework to guide procedures specific
to the type of environmental violation is needed.

EXISTING FRAMEWORK FOR ENVIRONMENT CRIME SCENE INVESTIGATIONS. The
National Institute of Justice (N IJ ) developed an agenda for the investigation and
prosecution of illegal waste dumping cases (figure 6). This framework provides a solid
starting point for the development of a more comprehensive investigative strategy for
investigating all types of environmental crimes and defines a process that involves eight
steps. It is important to note that not all investigations would follow the sequence exactly,
nor include each step. The first step is the detection of the offense or the possibility that
that an offense has or will occur. The second step includes the collection of data on the
state of the ecosystem prior to the violation, as well as background information on any
possible offenders. Surveillance of suspects and collection of evidence are the third and
fourth steps, respectively. The collection of evidence typically involves both the
prosecutor’s office and the natural resource agency. The fifih step, laboratory analysis,
seeks to prove that a violation meeting the legal requirements for prosecution under the
applicable statute did occur. Filing charges, the sixth step, occurs if the prosecutor
determines that criminal prosecution is merited. Other decisions include whether the

charges will be at the felony or misdemeanor level, or if the case should be pursued in

51

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civil court. The next step, adjudication, includes the prosecution offering a plea
agreement or bringing the case before a jury or bench trial. In addition, sentencing is
done at this stage. Cleanup and compliance is the final step in the framework of
investigating and prosecuting an environmental crime (Hammett and Epstein 1993). This
step is usually monitored by the regulatory agency and involves the collection of fines
and/or prison sentences. Clearly, processing the crime scene is an essential component of
the framework; from assessing the state of the environment prior to the violation to
collecting samples representative of the damage caused, investigating violations is vital to
maintaining sustainable ecosystems.

CHALLENGES or ENVIRONMENTAL CRIME SCENE PROCESSING. Developing a
protocol for processing chemical, physical, and biological environmental crime scenes
presents a number of unique challenges. Administrative difficulties include the lack of a
single, precise, all-inclusive definition of “environmental crime” and numerous
incomprehensive regulations which fail to criminalize many activities that degrade the
environment (Burns and Lynch 2004). In addition, there are many scientific hurdles that
must be overcome before environmental crime scenes can be processed and investigated
with the same rigor as traditional crimes. Lastly, inadequate allocation of resources
dedicated to investigating crimes which adversely impact the environment continues to
impede the advancement of environmental crime scene processing. All of these
challenges reciprocate to create an immense gap in what needs to be a comprehensive
strategy to address environmental crime. Given the relative paucity of environmental
crime scene investigation protocols, a review of the current challenges facing the field

provides a forum on which existing capabilities and recommendations are presented.

53

ADMINISTRATIVE CHALLENGES. One of the greatest inadequacies of the current state
of environmental policy and management is that there is not a single accepted source that
defines “environmental crime.” Toxic and hazardous waste disposal are the traditional
foci of regulations, research, and resource allocation. Environmental regulations, such as
the Clean Air Act, prohibit specific actions, thereby, including them under the umbrella
of environmental crime. This practice, however, has led to a number of crimes being
omitted from the development of environmental crime investigation and prosecution
protocols. Examples of these crimes include: overuse of land; destruction of habitat; and,
introduction of injurious species. While each of these activities is prohibited by various
statutes, the fragmented approach to defining them as crimes has resulted in ineffective
investigation and prosecution (Clifford 1998).

Part of the struggle with defining environmental crime is the lack of a traditional
human victim; even though thousands of native fish may die due to the unlawful
introduction of an injurious species, there is no “corpse,” in the traditional sense.
Furthermore, due to the “downstream effect,” whereby a crime may happen in one
location, but the effects of it are felt far from the origin, it is exceptionally difficult to
measure the degree of harm of a specific act. Although there are many data sources on
environmental crime, the majority of them focus on pollution levels and none of them
provide a comprehensive measure of anthropogenic environmental degradation (Burns
and Lynch 2004).

Environmental law presents a number of unique challenges to enforcement
personnel. In addition to being relatively new and incredibly complex, it is highly

interdisciplinary as it overlaps with many other disciplines such as constitutional,

54

administrative, and criminal law, as well as tort claims, property rights, and international
trade. Environmental law challenges traditional boundaries and, due to the influence of
industry and development, is subject to intense debate about the nature of the requisite
scientific evidence. Lastly, and perhaps the most complex challenge presented by
environmental law, is the degree of scientific uncertainty that surrounds it. Ofien, the
extent, or even existence, of problems iS unknown, while the effects of are long-term
(Walker 1998). Each of the challenges that complicate regulation of the environment has
Significant implications for how laws, penalty provisions and investigative procedures
will be developed, which will, in turn, impact how violators will be prosecuted.

Jurisdictional issues also present unique challenges when enforcing environmental
laws and investigating environmental crimes. Given the interconnectedness of all
elements of an ecosystem, a Single offense can cascade through an ecosystem, thereby
triggering responses from multiple agencies at all levels of government. Depending on
the violation, the elements of the ecosystem affected, and the location of the offense,
federal, provincial, tribal, state, and/or local enforcement agencies may have primary
jurisdiction. Furthermore, different states bestow differing levels of authority on
conservation officers. Therefore, the degree to which an officer is mandated to investigate
environmental crimes will also vary between states (Falcone 2004).

Environmental crime scene processing requires a unique collaboration between
and within natural resource management agencies and law enforcement agencies. To
accurately charge and penalize each violator, law enforcement personnel Should have an
assessment of the environmental conditions both before and after the act occurred (Situ

and Emmons 2000). This assessment must be compared to the evidence gathered from

55

the investigation to determine the extent of the damage to the environment/ecosystem.
Charges and adjudication are then based upon the results of the investigation and the
prescribed required clean-up. The exchange of information between law enforcement and
natural resource agencies is not only essential for crime scene analysis, investigation, and
prosecution, it is also integral to the development of management strategies needed to
offset the impact of the crime, to deter future violators, and to re-emphasize the value of
the resource.

SCIENTIFIC CHALLENGES. Challenges within the realm of science, for the most part,
can be remedied fairly easily. It is not a lack of technology or understanding of ecosystem
functioning that hinders investigations. Rather, it is generally the disjointed relationship
between natural resource law enforcement and environmental law that creates roadblocks
to establishing a scientifically sound protocol for investigating various environmental
crimes. That being said, there are a number of areas in which investigations would be
greatly improved and cases made stronger through further development of investigative
practices and technologies.

Evidence collection is often the biggest hurdle in prosecuting an environmental
crime. For many environmental crimes, it is nearly impossible to prove a violation
occurred and assign responsibility unless an individual or group is caught in the act of
violating a specific statute. Evidence collection is vital not only to prove a crime occurred,
but is also integral to determining the duration and magnitude of the offense. This has
clear implications for the prosecution of the violator and is particularly relevant when
arguing a crime has been committed against the environment. Practical difficulties such

as the time and nature of the offense, weather conditions, and access to the crime scene

56

often preclude officers from gathering sufficient evidence (Molino 1995). Despite the
many practical difficulties officers face, sufficient evidence is ofien available, but not
adequately collected. This is indicative of a poor understanding of criminal proceedings
and inadequate first responder training of enforcement authorities (Situ 1997). In the
majority of environmental criminal cases, there is only one chance to gather evidence.
Therefore, conservation officers, who are usually the first on the scene of discovery, must
be educated in evidence collection and handling. Conservation officer training programs
Should include instruction on environmental crime scene processing techniques. The
Land Management Police Training (LMPT) Program, which all Department of Interior
conservation officers must complete, provides a brief crime scene processing section, but
does not address specific environmental crime investigative techniques. Addressing this
gap in all state and federal conservation officer training curriculums is essential to
promoting a more effective response — by conducting investigations that promote
successful prosecutions and deter future violators — to environmental crimes. An
increased ability to meet a higher standard of proof will heighten the response to, and
awareness of, environmental crimes through successful prosecution.

Evidence gathered must be measurable in some way to prove a violation occurred
and, as a result, that the ecosystem was harmed, or that the potential for harm was present.
To accurately interpret the evidence gathered, it is necessary to understand the status of
the ecosystem that has been damaged. Reports should include an evaluation of impacts to
species, habitats, and ecosystem process, as well as the degree to which they were
affected. Ambient conditions, which will vary depending on the type and location of the

violation, must be included for an accurate assessment of damage. Storing, testing, and

57

interpretation techniques for each type of evidence must be standardized to offset legal
disputes about the admissibility of the evidence (Molino 1995). Training programs, such
as the LMPT program, should work with biologists and ecologists to develop a basic
module for environmental crime scene processing. Standardized investigative techniques
must be incorporated into conservation officer training programs; federal and state
agencies Should jointly develop these guidelines to promote consistent enforcement
practices.

The development of fish and wildlife genetic databases has Significantly enhanced
the investigation and prosecution of a certain wildlife crimes. This relatively new
phenomena, first used in a criminal trial in 1996 (Beamish v. Her Majesty The Queen,
Docket # AD-O693), is developing rapidly given the degree of understanding achieved
through work on the human genome project. In fact, technological advances are
occurring far faster than the development of regulations and case law that are needed to
apply them (Dove 1999). A database which contains mitochondrial DNA sequences from
various species traded on the black market has been established by the National Fish and
Wildlife Forensics Laboratory (NFWFL). Currently this black market business, second
only to drug smuggling, generates an estimated $10 billion annually and is flourishing
because the risk of getting caught is minimal compared with the high profit margin
(Kazmar 2000; Duffy 2002). Samples collected from confiscated illegal shipments of
wildlife and products derived from their parts, can be compared to test samples in the
database to identify the type of Species. In addition, individual animal identification
protocols, used to match various products to a specific carcass, have been developed. The

database will greatly advance efforts to increase enforcement of illegal wildlife Shipments.

58

Another database, which will be used for the forensic identification of caviar, is currently
being constructed. This database will allow investigators to determine the species source
for sturgeon and paddlefish caviar shipments (Fain et al. 2000). Sturgeon, which are over-
fished and illegally traded for their caviar, are currently listed as an Appendix II species
under the Convention of International Trade of Endangered Species of Flora and Fauna
(CITES 2006). The development of this database will help curb the extent of illegal
harvest and trade of these endangered species by promoting the potential to identify the
origin of the poached animal.

ALLOCATION or FUNDING. STAFF, AND EQUIPMENT. The administrative and scientific
challenges discussed above are all joined by one underlying factor: the lack of resources
dedicated to the study of environmental crime. The field is characterized by unfunded
mandates and over-extended natural resource conservation departments charged with
enforcing laws and regulations pertaining to the environment.

The primary resource needed to investigate environmental crimes is trained and
committed officers. As Edgar Espinoza, deputy director of the NFWFL, stated, “There
are way too many people [investigating] people crime and way too few people
investigating wildlife crime” (Dove 1999). As annual budgets designated to natural
resource agencies continue to dwindle, conservation law enforcement, falling short on a
long list of priorities, is one of the functions that is hardest hit. As a result, fewer officers,
often with minimal investigative training and tools are assigned to cover larger areas and
given a greater number of responsibilities (Falcone 2004). Michigan, a state that takes
great pride in the unique natural resources afforded by the Great Lakes, clearly illustrates

the distressing condition of natural resource law enforcement. According to the Michigan

59

Department of Natural Resources (MDNR), the state employs only 146 conservation
officers to cover more than 9,000 miles of shoreline and nearly 100,000 square miles of
surface area (MDNR 2006). While states continue to struggle with budgetary limitations,
which preclude maintaining a full force of officers to protect the resources of that state,
the federal government has also been forced to operate with an insufficient number of
officers. Currently, USFWS, the premier federal law enforcement authority for fisheries
and wildlife, is operating with approximately 225 agents nationwide (U SFWS 2006).

In addition to requiring more conservation officers to fulfill the mandate of
protecting the nation’s natural resources, comprehensive training programs that address
all aspects of investigation and crime scene processing are needed. Conservation officers
routinely have enforcement responsibilities within federal and state parks and forests,
watersheds, wetlands, private property, and urban areas within their purview (Falcone
2004). Given that crimes can occur anywhere and will affect all types of landscape,
conservation officers must be trained to process crime scenes in any medium.
Furthermore, training must include instruction on collecting biological evidence in a
manner that meets the strict requirements set forth by the criminal justice system. To be
of value to a criminal investigation, all evidence must be properly recognized,
documented, collected, and preserved. The methods employed in the initial stages of
evidence collection, for all types of crime, will be rigorously scrutinized in court; if even
one step in the sequence is skipped, or done improperly, the evidence will likely be ruled
inadmissible. In addition, the credibility of the officer comes under scrutiny when

challenges to the investigative procedures are raised in court (Lee and Ladd 2001).

60

While the forensic technology to identify individual species is available, or is
nearly available, the resources dedicated to the development of the procedures and
databases are woefully inadequate. Whereas state and federal law enforcement officers
have a number of state-wide crime labs, in addition to the Federal Bureau of
Investigation’s National Crime Lab, wildlife officers have only one crime lab at their
disposal. The National Fish and Wildlife Forensics Lab was founded in 1975 by the
USFWS and is located in Ashland, Oregon. The NF WFL not only serves the USFWS and
conservation officers from all 50 states, but also provides investigative assistance to the
165 signatory nations of CITES (F alcone 2004). Annually, operating on a budget of $2.2
million, the NFWFL participates in approximately 1,000 cases and processes 3,000—
4,000 samples (Dove 1999). There is an undisputable need for forensic analysis dedicated
to environmental crimes; however, resource limitations continue to hinder further
development of forensic technology and analysis.

INVESTIGATING THE INTRODUCTION OF ASIAN CARP INTO THE GREAT LAKES BASIN.

Despite the degree of risk presented by the introduction of Asian carp, the commercial
demand for them to be sold live has outweighed the threatened environmental destruction.
Asian carp are raised in aquaculture facilities, imported into the Great Lakes basin, and
transported throughout the region to be sold live in numerous fish markets. There are,
therefore, countless opportunities for accidental or intentional releases to occur. The first
point of prospective release occurs at aquaculture facilities. Unintentional releases from
aquaculture facilities can usually be attributed to inadequate precautionary measures to
prevent escape, such as cage culture occurring in areas susceptible to flooding. Despite
the fact that an unintentional release from an aquaculture facility is the reason for the

current dismal state of the Mississippi River basin, where Asian carp have decimated

61

native fish populations, aquaculture is still appallingly under-regulated. Although most
states require a permit to culture non-native fish, state Department of Agricultures are
usually tasked with monitoring the facilities to ensure the permit provisions are being
followed (Alexander 2003). The Department of Agriculture, in most states, does not have
enforcement authority, however, so the involvement of the state natural resource agency
conservation officers must be specifically requested by the Department of Agriculture.

A report prepared for the Ontario Ministry of Natural Resources on the risk of
invasion posed by the aquarium trade and live food industry stated that importation,
interstate commerce, and trade are among the most prevalent pathways through which
Asian carp can enter the Great Lakes (Goodchild 1999). The report estimated that more
than 900,000 pounds of live Asian carp were imported through Michigan to the Greater
Toronto Area from aquaculture facilities in the southern United States annually
(Goodchild 1999; Mandrak and Cudmore 2004). Efforts to list the black, silver, and
bighead carp as injurious species under Title 18 of the Lacey Act, thereby prohibiting the
importation and interstate commerce, have been futile. In the absence of federal
leadership, state and provincial fisheries management agencies have promulgated
regulations to ban the importation, possession, transportation, purchase, sale, release, and
export of live Asian carp. Yet, state regulations cannot interfere with interstate
commerce; therefore, fish can still be transported live into and throughout the basin,
creating a major avenue for unlawful release.

There is also great potential for Asian carp to be introduced into the Great Lakes
via the live market industry. Most requirements for obtaining a license to sell live fish

lack substance in that there is no criteria governing the issuance of the license; typically,

62

the payment of a fee and a documentation of sales are all that are required. Therefore,
there are few parameters guiding the storage, display, and sale of live fish. In addition to
the continual threat of unintentional release, one of the primary consumer groups of these
fish — Asian communities — present a unique threat of intentional release. In the Asian
culture, there is a belief that one can “. . .accrue merits by freeing captive animals into the
wild as a form of prayer to the gods” (Severinghaus and Chi 1999). In certain Asian
communities in the United States, this custom, called “prayer animal release” has lead to
the practice of purchasing two live fish from a market and releasing one live animal for
each one killed (Alexander 2003). Research is currently being conducted to determine the
prevalence of this practice.

Despite the state prohibitions on possessing live Asian carp, numerous instances
of these fish being caught in the wild, outside of their range of distribution, have been
documented (Kolar 2005; Mandrak and Cudmore 2004). These cases clearly demonstrate
that the regime governing the trade and the enforcement response to unlawful releases of
live non-native organisms clearly falls far short of what is necessary to protect the Great
Lakes from invasion by injurious species. In addition to the need for a comprehensive
program to address injurious species importations and introductions, a stricter
enforcement response must be implemented to deter accidental and intentional
introductions.

A fundamental component of a comprehensive strategy to address unlawful
introductions of injurious species must be the formulation of a more appropriate
enforcement response to unlawful releases; that is, releases must be investigated and

prosecuted in a manner which is consistent with the extent of destruction they could

63

cause. More often than not, regardless of whether an introduction was accidental or
intentional, investigations to determine where the fish originated are rarely conducted.
Currently, there is no set protocol for responding to a silver or bighead carp found in the
wild outside of their range. If a conservation officer is even informed, the extent of action
taken is that the fish is confiscated. Due to the regulatory and investigative challenges
discussed earlier, efforts to prove how the fish was released or to determine the fish’s
origin are minimal, if taken at all.

The first step to developing a stricter enforcement regime, which will greatly
improve the ability to conduct investigations of releases, is to increase inspections and
monitoring of importations of non-native fish. The lack of resources dedicated to
conducting inspections of live shipments of wildlife at ports of entry to the United States
is alarming. In 2002, there were only 97 inspectors at the 32 ports designated for fish and
wildlife importations to inspect the 223 million live fish that were imported into the
United States (GLRC 2005). Complete inspection of a shipment of live species is nearly
impossible due to the need for expedient processing of shipments crossing the border. To
this end, the aquarium pet trade has been referred to as the “most under-regulated aspect
of live fish commerce” (Alexander 2003). Trafficking routes used for smuggling illegal
wildlife shipments, drugs, and arms capitalize on areas where border enforcement is lax.
Certainly, if billions of dollars worth of illicit black market goods are successfully being
smuggled into the United States, shipments of fish containing potentially injurious
species enter with ease. Proactive enforcement measures targeted at preventing shipments
of unapproved species from entering the United States is the first — and strongest - line of

defense (GLRC 2005).

64

Another location in which inspections and monitoring is vital is at sites where
potentially injurious species are regularly handled (Alexander 2003). For example, by
conducting regular inspections and taking samples from watersheds in which aquaculture
facilities are located, a defensible baseline to compare changes in the ecosystem, should
an introduction occur, would be provided. The cost of these inspections and assessments
should be covered by the aquaculture industry. Furthermore, standardized, long-term
monitoring would facilitate meeting the standard of proof to successfully prosecute the
accidental or intentional release as an environmental crime. Increased monitoring at
locations where these fish are regularly handled, such as aquaculture facilities, will
increase public awareness of the potential harm these fish would cause if introduced into
the wild. Education is a key component of any successful enforcement program and must
be targeted to groups most likely to be responsible for accidentally or intentionally
releasing non-native fish (GLRC 2005). Regular monitoring of ecosystems, conducting
inspections, taking samples, and educating user groups will increase the investigative
potential and the number of successful prosecutions will rise, which, coupled with
adequate penalties, will, in turn, serve as a mechanism of deterrence for future unlawfirl
introductions.

As evidenced by technology advances in the field of DNA analysis for threatened
and endangered species, it is clear that the ability to develop a database on imported
species is available currently. By mandating that genetic samples from each species
approved for importation into the United States be recorded in a national database, the
possibility of identifying the origin of injurious species, and the party responsible for

releasing it, would be far more likely. Undoubtedly, a genetic database for imported

65

aquatic species would be a costly venture; yet, when compared to the economic
devastation caused by the establishment of injurious species, development of a database
is an expense that can be easily justified. Again, the cost to establish this database should
not be borne by the state and federal governments, but rather be a cost of importing non-
native aquatic species. Despite the fact that a cost analysis for the production and
maintenance of a database for imported fish species has not been conducted, other
databases provide some insight to the projected costs. The Norwegian Directorate of
Fisheries operates a minke whale genetic database using tissue archives. Collection and
storage for individual samples over a five-year period was approximately $83 while
genetic analyses averaged $276 per sample (Palsboll et al. 2006). A number of factors,
such as the type of sample collected (i.e. tissue versus fin clip), will dictate the financial
commitment needed. One possible solution for curbing the cost to the government is to
include the cost of sample collection in the terms of the permit for importation. Further,
should a genetic analysis of the sample be required to determine the origin of an unlawful
release, restitution and or civil penalties should be used to recover that cost.

The need for a database to trace the origin of the fish is clear when one examines
the current investigative response to an unlawful introduction. Reports of silver and
bighead carp being recovered from areas outside their range of distribution have been far
too frequent. The following case of a suspected intentional release exemplifies the
inadequate enforcement response and the need to address the gaps and limitations in the
trade regime immediately. In the summer of 1991, a live bighead carp was discovered in
a fountain on University Avenue in downtown Toronto, Ontario, near the shores of Lake

Ontario (Mandrak and Cudmore 2004). Conservation officers determined that the fish

66

was most likely purchased from a nearby fish market, but there was no way to ascertain
which market sold the fish nor who, specifically, released the fish.

RECOMMENDATIONS FOR DEVELOPING AN INVESTIGATIVE FRAMEWORK FOR

INJURIOUS SPECIES INTRODUCTIONS. The prosecution of the unlawful introduction of non-
native species from an aquaculture facility, would, in most states, involve the state
Department of Agriculture, the state Department of Natural Resources, and the USFWS, at
a minimum. Furthermore, depending on the extent of dispersion of the injurious species,
and whether the species becomes established, private landowners and other states may also
become involved. Future research in this area must first focus on developing a framework
to identify all types of environmental crimes in which all elements of an ecosystem are
considered. Building upon that framework, efforts should then be directed towards
developing a comprehensive protocol for the investigation and prosecution of each type of
environmental crime identified in the above framework to facilitate an effective
enforcement response.

A comprehensive environmental crime investigative framework should first focus
on distinguishing what type of offense occurred (figure 7). Given the potential variability
and remoteness of most environmental crime scenes, this step can be especially
challenging for conservation Officers (Molino 1993). After an initial assessment to
establish personal safety and to secure the crime scene, the Officer should assess whether
the violation is biological, chemical, or physical in nature. This first distinction should
trigger the involvement of certain agencies, such as the Department of Natural Resources
and the Environmental Protection Agency. For example, in the State of Michigan, a
violation concerning hazardous waste would invoke the involvement of the state

Department of Environmental Quality, whereas the unlawful alteration of shoreline

67

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would trigger the Department of Natural Resources. Of course, the jurisdiction in which
the violation occurred would dictate what agency would have primary enforcement
authority. Given that many environmental crimes are spread across several jurisdictions,
however, cooperative agreements between agencies throughout a region should be
developed to govern the investigative process.

Future research should focus on expanding the framework proposed in Figure 7 to
include all environmental crimes. Each type of crime (i.e. physical, chemical, and
biological) should be expanded to include specific classifications of environmental
crimes. For example, biological pollution (i.e. unlawful introduction) should be included
as a category of environmental crimes of a biological nature. Unlawful introductions
should encompass all activities that involve adding something to the ecosystem that is not
naturally occurring in that system. This category could then be further divided into
several categories including the release of biological warfare agents (i.e. anthrax) and
non-native species. The introduction of injurious species would be considered a
subcategory of the introduction of non-native species.

Afier the type of offense is ascertained, the scene should be processed using
standardized procedures. Again, while the NIJ protocol provides a starting point, an
investigative framework should further outline each step for different categories of
violations. A framework to guide the investigative process for all types of environmental
crimes should be developed to standardize protocols for processing various
environmental crime scenes. The major limitation of the National Institute of Justice’s
(NIJ) protocol is that it was designed to apply to illegal waste dumping cases and is too

broad to be applied to other forms of environmental crime (Hammett and Epstein 1993).

69

Yet, processing a scene in which a hospital disposes of medical waste in a nearby wetland
is vastly different than investigating a fish market owner dumping unsold live non-native
fish into a river. Just as in more traditional crime scene processing, the type of offense,
and the initial degree of harm caused by the crime, should dictate the level of response.
Depending on the specific type of offense, an investigative framework should guide the
procedures to be followed to accurately process the scene. For example, the second step
outlined in the NIJ protocol is broadly defined as data collection. A complete framework,
however, should specify the types of data (i.e. fish sampling surveys after the violation
for comparison to prior baseline surveys) that should be obtained for each type of
investigation. More sophisticated data collection techniques will be necessary for certain
types of environmental crimes and should be developed as the need is identified.
Similarly, evidence collection, the fourth step in the NIJ protocol, needs to be specifically
addressed for each type of crime scene. Using the violation example above, evidence that
could be useful in the prosecution of the live fish dealer would include copies of the sales
permit, records of the types of fish purchased and sold, the sales records of the wholesaler,
and sales logs to document how much product was left at the closing time of the market.
Regardless of the type of crime committed, there is always some form of evidence
available. Conservation officers need to be trained to recognize and collect all forms of
evidence as it is a vital component of any successfirl prosecution.

Creating an investigative framework is the first step towards successfully
prosecuting cases of introductions of injurious species. Conservation officers are charged
with protecting the nation’s natural resources; to fulfill this mission, environmental

crimes must not be minimized when compared to more traditional crimes.

70

CONCLUSION

In conclusion, introductions of injurious species threaten ecosystems throughout
the country; many of these systems cannot tolerate even one new invader. It is clear that
the regulations, enforcement practices, and existing penalties are not serving as an
effective deterrent. As a result of the minimal enforcement response directed towards
unlawful introductions, the message being sent is that these activities are not significant
and do not have severe consequences.

Efforts to prevent firrther injurious importations and introductions must occur
more proactively, be comprehensive, and receive strong financial commitment from all
levels of government for enforcement. Society must place a higher value on the
environment, in turn prompting the government to make its protection a higher priority.
Environmental agencies must seek to increase the public awareness of the threat injurious
species pose, because increased awareness will translate into an increase in funding for
required management and enforcement efforts.

During the course of this research, it has become apparent that there a number of
areas in which future research is needed to advance the ideas and recommendations
submitted throughout this paper. Chapter 4 presents a discussion on the future legislative
needs to address injurious species and chapter 5 focuses primarily on what is needed to
advance environmental crime investigative techniques. This research presented an
argument for why injurious species introductions should be classified, investigated, and
prosecuted an environmental crime. Future research needs presented throughout this
paper (figure 8) are essential to advance the definition of, and response to, environmental

crimes.

71

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Strengthening the legislation against, and improving the enforcement of, the
intentional and unintentional importation and introduction of injurious species will
facilitate the development of stronger, enforceable regulations and associated penalties,
which will, in turn, ultimately serve as a deterrent. The USFWS, which has the authority
to regulate the importation and introduction of injurious species, needs to recognize and
exercise its mandate to lead this movement. Regulations must be promulgated to establish
a strict screening process, effective control, containment and eradication procedures, and
clearly defined regulations with stringent enforcement provisions.

To ensure the sustainability of the Great Lakes basin, the introduction of injurious
species must be responded to within the context of a more comprehensive definition of
environmental crime. Moreover, establishing a framework to facilitate the development
of investigative procedures for all types of environmentally harmful activities is

imperative to preventing further environmental damage.

73

Literature Cited

Alexander, A. 2003. Legal Tools and Gaps Relating to Commerce in Exotic Live Fish -
Phase I Report to the Great Lakes Fishery Commission. Environmental Law and
Policy Center.

AF WA. 2007. Law Enforcement. Association of Fish and Wildlife Agencies Available:
http://www.fishwildlife.org/about comm_lawenforce.html#.

 

Burns, R. G. and M. J. Lynch. 2004. Environmental Laws: An Overview. Environmental
Crime: A Sourcebook. LFB Scholarly Publishing, New York.

Executive Order 11987 — Exotic Organisms. 42 Federal Register 26949. May 24, 1977.
The US. National Archives and Records Administration, Washington DC.

Executive Order 12866 — Regulatory Planning and Review. 58 Federal Register 51735.
The US. National Archives and Records Administration, Washington DC.

Chadderton, W. L. 2003. Management of Invasive Freshwater Fish: Striking the Right
Balance! Pages 71-83 in Managing Invasive Freshwater Fish in New Zealand,
DOC Workshop, Hamilton.

Chapman, D. and coauthors. 2003a. An Examination of the Sensitivity of Bighead Carp
and Silver Carp to Antimycin A and Rotenone. United States Geological Survey.

Chapman, J. W. T. W. Miller, and E. V. Coan. 2003b. Live Seafood Species as Recipes
for Invasion. Conservation Biology 17:1386-1395.

Chick, J. H. R. J. Maher, B. M. Burr, and M. R. Thomas. 2003. First Black Carp
Captured in US Science 300: 1 876-1 877.

Chick, J. H. and M. A. Pegg. 2001. Invasive Carp in the Mississippi River Basin. Science
292:2250-225 1.

Christie, G. C. and C. I. Goddard. 2003. Sea Lamprey International Symposium (SLIS
II): Advances in the Integrated Management of Sea Lamprey in the Great Lakes.
Journal of Great Lakes Research 29 Supplement 1:1-14.

Clifford, M. editor. 1998. Environmental Crime: Enforcement, Policy and Social
Responsibility. Aspen Publications, Inc. Gaithersburg, MD.

Conover, G. R. Simmonds, and M. Whalen, editors. In review. Draft Management and
Control Plan for Asian carps in the United States. Asian Carp Working Group,
Aquatic Nuisance Species Task Force, Washington, DC.

Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES). 2004. The CITES Species. Available:
http://cites.org/eng/disc/species.shtml.

74

Courtenay, W. R. and P. L. Fuller. 2004. Under Water and Out of Sight: Invasive Fishes
in the United States - Implications for National Parks. Park Science 22:42-45.

Dove, A. 1999. The Long Arm of DNA. Nature Biotechnology 17:649-651.

Duffy, R. 2002. Resisting Environmentalism: Global Governance and Local
Dysgovemance. Pages 1-18 in The End of Environmentalism. Lancaster U,
Lancaster, UK.

Ebener, M. and coauthors. 2005. Recommendations for Mass Marking Hatchery-Reared
Trout and Salmon Stocked into the Great Lakes Basin. Great Lakes Fishery

Commission.

Environmental Protection Agency (EPA). 2006. Superfund Appropriation History:
Funding for the Superfund, Brownfields, ATSDF, and NIEHS Programs, Fiscal
Years 1993 through 2005. Available:
http://www.epa.gov/superfund/action/processlbudgethistorvhtm

Fain, S. R. J. P. LeMay, J. Shafer, R. M. Hoesch, and B. H. Hamlin. 2000. The
Development of a DNA Procedure for the Forensic Identification of Caviar.
National Fish and Wildlife Laboratory.

F alcone, D. 2004. America's Conservation Police: Agencies in Transition. Policing
27(1):56-66.

F erber, D. 2001. Will Black Carp be the Next Zebra Mussel? Science 292:203.

Fitzsimmons, K. 2006. American Tilapia Association. Available:
http://ag.arizona.edu/azaqua/ata.html.

Freeze, M. and S. Henderson. 1982. Distribution and Status of the Bighead Carp and
Silver Carp in Arkansas. North American Journal of Fisheries Management
2:197-200.

GLIN. 2006. Fish and Fisheries of the Great Lakes Region. Great Lakes Information
Network. Available: http://www.great-lakes.net/envt/flora-
fauna/wildlife/fish.html.

GLRC. 2005. Great Lakes Regional Collaboration Strategy To Restore and Protect the
Great Lakes. Environmental Protection Agency. Pp. 17-22.

Goddard, C. I. 2002. The Future of Pacific Salmon in the Great Lakes. Pages 139-154 in
Sustaining North American Salmon: Perspectives across Regions and Disciplines.
American Fisheries Society.

Goodchild, CD. 1999. Non-indigenous freshwater fish utilized in the live food fish
industry in Ontario, a summary of information. Ontario Ministry of Natural Resources.

75

Hammett, T. M. and J. Epstein. 1993. Local Prosecution of Environmental Crime. US.
Department of Justice: National Institute of Justice.

Hardin, G. 1968. The Tragedy of the Commons. R. W. Findley, D. A. Farber, and J.
Freeman, editors. Cases and Materials on Environmental Law, 6th edition. West
Publishing Co. St. Paul, MN.

Jenkins, P. T. 1996. Free Trade and Exotic Species Introductions. Conservation Biology
10:300-302.

Kazmar, Jonathon. 2000. The International Illegal Plant and Wildlife Trade: Biological
Genocide? University of California Davis Journal of International Law and Policy
6.1: 106-129.

Koel, T. M. K. S. Irons, and E. Ratcliff. 2000. Asian Carp Invasion of the Upper
Mississippi River System. Upper Midwest Environmental Sciences Center:
United States Geological Survey.

Kolar, C. S. and coauthors. 2005. Asian Carps of the Genus Hypophthalmichthys (Pisces,
Cyprinidae) - A Biological Synopsis and Environmental Risk Assessment. US.
Fish and Wildlife Service.

Lee, H. C. and C. Ladd. 2001. Preservation and Collection of Biological Evidence.
Connecticut Department of Public Safety Forum 42:225-228.

Madison, Mark. 2006. Origins of United States Fish and Wildlife Service. United States
Fish and Wildlife Service. Available: Imp://training.fws.gov/hist<m/mgins.html.

Mandrak, N. E. and B. Cudmore. 2004. Risk assessment for Asian Carps in Canada.
Canadian Science Advisory Secretariat: Department of Fisheries and Oceans.

McGregor, G. I. 1994. Environmental Law and Enforcement. CRC Press LLC, Boca
Raton, FL.

MDNR. 2001-2006. How to Become a Conservation Officer. Michigan Department of
Natural Resources. Available: http://www.michigan.gov/dnr/O.1607,7-153-
42199-45375--,00.html.

 

Michigan Sea Grant. 2007. Habitattitude Campaign. Available:
http://www.miseagrant.umich.edu/ais/state-regional-outreach.html#habitat.

Molino, S. 1993. Practical Difficulties in Prosecuting Environmental Offenders. G. N. J.
Norberry, and S. McKillop, editors. Environmental Crime.

Moy, P. 2005. Asian Carp and the Chicago Aquatic Nuisance Species Dispersal Barrier.
Great Lakes Law Enforcement Committee. Great Lakes Fishery Commission.

76

National Aquaculture Association. 2004. Environmental Stewardship: Challenge and
Opportunity. Available:
http://www.nationalaquaculture.org/pages/stewardship.html.

NOAA. 2006. NOAA Legacy Timeline 1807—1899, 1900—1969. National Oceanic and
Atmospheric Administration Available:
http://www.historv.noaa.gov/legacL/time1900_1.html.

Nico, L. and P. Fuller. 2007. Mylopharyngodon piceus. United States Geological Survey
Nonindegenous Aquatic Species Database.

Palsboll, P. J. M. Berube, H. J. Skaug, and C. Raymakers. 2006. DNA Registers of
Legally Obtained Wildlife and Derived Products as Means to Identify Illegal
Takes. Conservation Biology 20: 1284—1293.

Pimentel, D. 2005. Aquatic Nuisance Species in the New York State Canal and Hundson
River Systems and the Great Lakes Basin: An Economic and Environmental
Assessment. Environmental Management 35:692-701.

Pimentel, D. L. Lach, R. Zuniga, and D. Morrison. 2000. Environmental and Economic
Costs of Nonindigenous Species in the United States. BioScience 50:53-65.

Rasmussen, J. L. 2002. The Asian Carp Threat to the Upper Mississippi and Great Lakes
Ecosystems - A Perspective. Great Lakes Law Enforcement Committee. Great
Lakes Fishery Commission.

Ricciardi, A. 2001. F acilitative Interactions among Aquatic Invaders: Is an “Invasional
Meldown” Occurring in the Great Lakes? Canadian Journal of Aquatic Science
58:2513-2525.

Ricciardi, A. 2006. Patterns of Invasion in the Laurentian Great Lakes in Relation to
Changes in Vector Activity. Diversity and Distributions 12:425-433.

Ricciardi, A. and J. B. Rasmussen. 1998. Predicting the Identity and Impact of Future
Biological Invaders: A Priority for Aquatic Resource Management. Canadian
Journal of Aquatic Science 55: 1759-1765.

Severinghaus, L. L. and L. Chi. 1999. Prayer Animal Release in Taiwan. Biological
Conservation (89):301-304.

Sheill, D. Telephone conversation with author, 9 August 2005.

Situ, Y. and D. Emmons. 2000. Environmental Crime: The Criminal Justice System’s
Role in Protecting the Environment. Sage Publications, Inc, Thousand Oaks, CA.

Stanley, J. G. J. R.A. Peoples, and J. A. McCann. 1991. US. Federal Policies, Legislation,
and Responsibilities Related to Importation of Exotic Fishes and Other Aquatic

77

Organisms. Canadian Journal of Aquatic Science 48: 162-166.

Talhelm, DR. 1988. Economics of Great Lakes Fisheries: A 1985 Assessment in
Technical Report #54. Great Lakes Fishery Commission, Ann Arbor.

Tanner, H. A. and W. H. Tody. 2002. History of the Great Lakes Salmon Fishery: A
Michigan Perspective. Pages 139-154 in Sustaining North American Salmon:
Perspectives across Regions and Disciplines. American Fisheries Society.

Taylor, W. N. J. Leonard, J. F. Kratzer, C. I. Goddard, and P. Stewart. In Press.
Globalization: Implications for Fish, Fisheries and their Management. W. Taylor,
M. Schechter, and L. Wolfson, editors. Globalization: Effects on Fisheries
Resources. American Fisheries Society.

USFWS. 2005. Service Law Enforcement. United States Fish and Wildlife Service.
Available: http://www.fws.gov/le/AboutLE/about_le.htm

USGS. 2007. Zebra Mussels. United States Geological Survey. Available:
http://www.glsc.usgs.gov/main.php?content=research_invasivetzebramussel&titl
e=Invasive%20InvertebratesO&menu=research invasive invertebrates

USGPO. 1981. Lacey Act Amendments of 1981. Vol. 16 U.S.C. 3371-3378; Vol. 18
U.S.C. 42, United States Code. Washington: US. Government Printing Office.

Webb, J. T. 2006. Lacey Act: Premier Weapon to Fight Fish and Wildlife Trafficking.
US. Fish and Wildlife Service: Refuge Officer Basic School.

Wilson, E. 2005. Status of the Asian Carp Injurious Wildlife Evaluations (Lacey Act).
Council of Lake Committees. Great Lakes Fishery Commission.

Y. S. 1998. A Pathway to the Knowledge of Environmental Crime: Learning Through
Service. Journal of Criminal Justice Education 8:243-251.

Zavelta, E. S. R. J. Hobbs, and H. A. Mooney. 2001. Viewing Invasive Species Removal
in a Whole-Ecosystem Context. Trends in Ecology and Evolution 16:454-459.

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